1842 115 SUPREME COURT REPORTER 514 U.S. 779

514 U.S. 779, 131 L.Ed.2d 881 people of the . U.S.C.A. Const. Art. 1, §§ 2, cl. 2, 3, cl. 3. S 779U.S. TERM LIMITS, INC., et al., Petitioners, 2. United States O7.1 v. With respect to Congress, framers of the et al. Constitution intended the Constitution to es- tablish fixed qualifications in the sense that , Attorney General they may not be supplemented by Congress. of , Petitioner, U.S.C.A. Const. Art. 1, §§ 2, cl. 2, 3, cl. 3. v. 3. States O4.16(2) Bobbie E. HILL et al. Powers retained by the states under the Nos. 93–1456, 93–1828. Tenth Amendment proceed, not from the Argued Nov. 29, 1994. people of America, but from the people of the Decided May 22, 1995. several states and they remain, after adop- tion of the Constitution, what they were be- fore, except so far as they may be abridged Action was brought challenging amend- by that instrument. U.S.C.A. Const.Amend. ment to the Arkansas Constitution which 10. precluded persons who had served certain number of terms in the United States Con- 4. States O4 gress from having their names placed on the States retain a significant measure of ballot for election to Congress. The Circuit sovereign authority but they do so only to Court found that the provision violated the the extent that the Constitution has not di- United States Constitution. The Arkansas vested them of their original powers and Supreme Court affirmed, 316 Ark. 251, 872 transferred those powers to the federal gov- S.W.2d 349. On certiorari, the Supreme ernment. U.S.C.A. Const.Amend. 10. Court, Justice Stevens, held that: (1) states may not impose qualifications for offices of 5. States O4.4(3) the United States representative or United United States O7.1 States senator in addition to those set forth by the Constitution; (2) power to set addi- Power to add qualifications for the of- tional qualifications was not reserved to the fices of congressman and senator is not part states by the Tenth Amendment; and (3) of the original powers of sovereignty which state provision is unconstitutional when it has the Tenth Amendment reserved to the likely effect of handicapping a class of candi- states. U.S.C.A. Const. Art. 1, §§ 2, cl. 2, 3, dates and has the sole purpose of creating cl. 3; Amend. 10. additional qualifications indirectly. 6. States O4.4(1) Affirmed. States can exercise no powers whatsoev- Justice Kennedy filed a concurring opin- er which exclusively spring out of the exis- ion. tence of the national government which the Justice Thomas filed a dissenting opin- Constitution does not delegate to them, and ion in which Chief Justice Rehnquist, Justice no state can say that it has reserved what it O’Connor, and Justice Scalia joined. never possessed. U.S.C.A. Const.Amend. 10.

7. Taxation O9 1. United States O7.1 Constitution’s silence on the subject of Allowing individual states to adopt their state power to tax corporations chartered by own qualifications for congressional service Congress does not imply that the states have would be inconsistent with framers’ vision of reserved power to tax such federal instru- uniform national legislature representing the mentalities. U.S.C.A. Const.Amend. 10. 514 U.S. 779 U.S. TERM LIMITS, INC. v. THORNTON 1843 Cite as 115 S.Ct. 1842 (1995) 8. United States O7.1 15. States O18.71 In the national government, representa- United States O7.1, 11 tives owe primary allegiance, not to the peo- State constitutional provision which pre- ple of a state, but to the people of the nation. cluded person’s name from appearing on bal- lot for election to Congress if the person had 9. United States 7.1 O served three or more terms as a member of Even if states possessed as part of their the House of Representatives or two or more original powers some control over congres- terms as a member of the United States sional qualifications, the qualifications clauses Senate was not a mere regulation of the were intended to preclude states from exer- times, places, and manner of holding elec- cising any such power and to fix as exclusive tions but, rather, was an impermissible quali- the qualifications set forth in the Constitu- fication for office. U.S.C.A. Const. Art. 1, tion. U.S.C.A. Const. Art. 1, §§ 2, cl. 2, 3, cl. §§ 2, cl. 2, 3, cl. 3, 4, cl. 1. 3. 16. United States O7.1 10. States O18.71 State provision is unconstitutional when United States O7.1 it has a likely effect of handicapping a class State-imposed restrictions on qualifica- of candidates for Congress and has the sole tions for Congress violate the idea that the purpose of creating additional qualifications right to choose representatives belongs, not indirectly. U.S.C.A. Const. Art. 1, §§ 2, cl. to the states, but to the people. U.S.C.A. 2, 3, cl. 3. Const. Art. 1, §§ 2, cl. 2, 3, cl. 3. Syllabus * 11. United States O7.1 Respondent Hill filed this suit in Arkan- Congress of the United States is not a sas state court challenging the constitutional- confederation of nations in which separate ity of § 3 of Amendment 73 to the Arkansas sovereigns are represented by appointed del- Constitution, which prohibits the name of an egates but is instead a body composed of otherwise-eligible candidate for Congress representatives of the people. from appearing on the general election ballot if that candidate has already served three 12. United States O1 terms in the House of Representatives or Ours is a government of the people, by two terms in the Senate. The trial court the people, for the people. held that § 3 violated Article I of the Federal Constitution, and the Arkansas Supreme 13. United States O7.1 Court affirmed. A plurality of the latter Constitutionality of state law setting court concluded that the States have no au- forth qualifications for Congress would not thority ‘‘to change, add to, or diminish’’ the depend on the method of its adoption, and age, citizenship, and residency requirements the people of the state, in enacting a mea- for congressional service enumerated in the sure, have no more power than does the state Qualifications Clauses, U.S. Const., Art. I, legislature to supplement the qualifications § 2, cl. 2, and Art. I, § 3, cl. 3, and rejected for service in Congress. U.S.C.A. Const. the argument that Amendment 73 is constitu- Art. 1, §§ 2, cl. 2, 3, cl. 3. tional because it is formulated as a ballot access restriction rather than an outright 14. Constitutional Law O38 disqualification of congressional incumbents. Constitution nullifies sophisticated as Held: Section 3 of Amendment 73 to the well as simple-minded modes of infringing on Arkansas Constitution violates the Federal constitutional protections. Constitution. Pp. 1847–1871.

* The syllabus constitutes no part of the opinion of See United States v. Detroit Lumber Co., 200 U.S. the Court but has been prepared by the Reporter 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499. of Decisions for the convenience of the reader. 1844 115 SUPREME COURT REPORTER 514 U.S. 779

(a) The power granted to each House of sentatives would result in a patchwork that Congress to judge the ‘‘Qualifications of its would be inconsistent with the Framers’ vi- own Members,’’ Art. I, § 5, cl. 1, does not sion of a uniform National Legislature repre- include the power to alter or add to the senting the people of the United States. The qualifications set forth in the Constitution’s fact that, immediately after the adoption of text. Powell v. McCormack, 395 U.S. 486, the Constitution, many States imposed term 540, 89 S.Ct. 1944, 1973, 23 L.Ed.2d 491. limits and other qualifications on state offi- After examining Powell ’s analysis of the cers, while only one State imposed such a Qualifications Clauses history and text, id., at qualification on Members of Congress, pro- 518–548, 89 S.Ct., at 1962–1978, and its artic- vides further persuasive evidence of a gener- ulation of the ‘‘basic principles of our demo- al understanding that the qualifications in the cratic system,’’ id., at 548, 89 S.Ct., at 1978, Constitution were unalterable by the States. this Court reaffirms that the constitutional Pp. 1852–1866. qualifications for congressional service are (c) A state congressional term limits ‘‘fixed,’’ at least in the sense that they may not be supplemented by Congress. Pp. measure is unconstitutional when it has the 1847–1852. likely effect of handicapping a class of candi- dates and has the sole purpose of creating (b) So too, the Constitution prohibits additional qualifications indirectly. The States from imposing congressional qualifica- Court rejects petitioners’ argument that tions additional to those specifically enumer- Amendment 73 is valid because it merely ated in its text. Petitioners’ argument that precludes certain congressional candidates States possess control over qualifications as from being certified and having their names part of the original powers reserved to them appear on the ballot, and allows them to run by the Tenth Amendment is rejected for two reasons. First, the power to add qualifica- as write-in candidates and serve if elected. tions is not within the States’ pre-Tenth Even if petitioners’ narrow understanding of Amendment ‘‘original powers,’’ but is a new qualifications is correct, Amendment 73 must right arising from the Constitution itself, and fall because it is an indirect attempt to evade the Qualifications Clauses’ requirements and thus is S 780not reserved. Second, even if the States possessed some original power in this trivializes the basic democratic principles un- area, it must be concluded that the Framers derlying those Clauses. Nor can the Court intended the Constitution to be the exclusive agree with petitioners’ related argument that source of qualifications for Members of Con- Amendment 73 is a permissible exercise of gress, and that the Framers thereby ‘‘divest- state power under the Elections Clause, Art. ed’’ States of any power to add qualifications. I, § 4, cl. 1, to regulate the ‘‘Times, Places That this is so is demonstrated by the una- and Manner of holding Elections.’’ A neces- nimity among the courts and learned com- sary consequence of that argument is that mentators who have considered the issue; by Congress itself would have the power under the Constitution’s structure and the text of the Elections Clause to ‘‘make or alter’’ a pertinent constitutional provisions, including measure such as Amendment 73, a result Art. I, § 2, cl. 1, Art. I, § 4, cl. 1, Art. I, § 6, that is unfathomable under Powell. More- and Art. I, § 5, cl. 1; by the relevant histori- over, petitioners’ broad construction is funda- cal materials, including the records of the mentally inconsistent with the Framers’ view Constitutional Convention and the ratifica- of the Elections Clause, which was intended tion debates, as well as Congress’ subsequent to grant States authority to protect the in- experience with state attempts to impose tegrity and regularity of the election process qualifications; and, most importantly, by the by regulating S 781election procedures, see, ‘‘fundamental principle of our representative e.g., Storer v. Brown, 415 U.S. 724, 730, 733, democracy TTT ‘that the people should choose 94 S.Ct. 1274, 1279, 1280, 39 L.Ed.2d 714, not whom they please to govern them,’ ’’ Powell, to provide them with license to impose sub- 395 U.S., at 547, 89 S.Ct., at 1977. Permit- stantive qualifications that would exclude ting individual States to formulate diverse classes of candidates from federal office. Pp. qualifications for their congressional repre- 1866–1871. 514 U.S. 784 U.S. TERM LIMITS, INC. v. THORNTON 1845 Cite as 115 S.Ct. 1842 (1995) (d) State imposition of term limits for Years, and been nine Years a Citizen of congressional service would effect such a fun- the United States, and who shall not, when damental change in the constitutional frame- elected, be an Inhabitant of that State for work that it must come through a constitu- which he shall be chosen.’’ tional amendment properly passed under the [1] Today’s cases present a challenge to procedures set forth in Article V. Absent an amendment to the Arkansas State Consti- such an amendment, allowing individual States to craft their own congressional quali- tution that prohibits the name of an other- fications would erode the structure designed wise-eligible candidate for Congress from ap- by the Framers to form a ‘‘more perfect pearing on the general election ballot if that Union.’’ P. 1871. candidate has already served three terms in the House of Representatives or two terms 316 Ark. 251, 872 S.W.2d 349 (1994), in the Senate. The Arkansas Supreme Court affirmed. held that the amendment violates the Feder- STEVENS, J., delivered the opinion of al Constitution. We agree with that holding. the Court, in which KENNEDY, SOUTER, Such a state-imposed restriction is contrary GINSBURG, and BREYER, JJ., joined. to the ‘‘fundamental principle of our repre- KENNEDY, J., filed a concurring opinion, sentative democracy,’’ embodied in the Con- post, p. 1872. THOMAS, J., filed a stitution, that ‘‘the people should choose dissenting opinion, in which REHNQUIST, Powell C.J., and O’CONNOR and SCALIA, JJ., whom they please to govern them.’’ joined, post, p. 1875. v. McCormack, 395 U.S. 486, 547, 89 S.Ct. 1944, 1977, 23 L.Ed.2d 491 (1969) (internal quotation marks omitted). Allowing individ- Winston Bryant, for petitioner in 93–1828. ual States to adopt their own qualifications John G. Kester, for petitioners in 93–1456. for congressional service would be inconsis- Louis R. Cohen for respondents. tent with the Framers’ vision of a uniform Drew S. Davis, III, for U.S. as amicus National Legislature representing the people curiae, by special leave of the Court. of the United States. If the qualifications set forth in the text of the Constitution are to For U.S. Supreme Court briefs, see: be changed, that text must be amended. 1994 WL 444683 (Pet.Brief), 1994 WL 444704 I 1994 WL 513192 (Resp.Brief), 1994 WL At the general election on November 3, 449512, 1994 WL 570304, 1994 WL 577074 1992, the voters of Arkansas adopted Amend- 1994 WL 646175 (Reply.Brief), 1994 WL ment 73 to their State Constitution. Pro- 658533, 1994 WL 658546, 1994 WL 660722 posed as a ‘‘Term Limitation Amendment,’’ its preamble stated: S 782Justice STEVENS delivered the opinion of the Court. S 784‘‘The people of Arkansas find and de- The Constitution sets forth qualifications clare that elected officials who remain in for membership in the Congress of the Unit- office too long become preoccupied with ed States. Article I, § 2, cl. 2, which applies reelection and ignore their duties as repre- to the House of Representatives, provides: sentatives of the people. Entrenched in- cumbency has reduced voter participation S 783‘‘No Person shall be a Representative who shall not have attained to the Age of and has led to an electoral system that is twenty five Years, and been seven Years a less free, less competitive, and less repre- Citizen of the United States, and who shall sentative than the system established by not, when elected, be an Inhabitant of that the Founding Fathers. Therefore, the State in which he shall be chosen.’’ people of Arkansas, exercising their re- Article I, § 3, cl. 3, which applies to the served powers, herein limit the terms of Senate, similarly provides: elected officials.’’ ‘‘No Person shall be a Senator who shall The limitations in Amendment 73 apply to not have attained to the Age of thirty three categories of elected officials. Section 1846 115 SUPREME COURT REPORTER 514 U.S. 784

1 provides that no elected official in the amendment also intervened, including peti- executive branch of the state government tioner U.S. Term Limits, Inc. may serve more than two 4–year terms. Section 2 applies to the legislative branch of On cross-motions for summary judgment, the state government; it provides that no the Circuit Court held that § 3 of Amend- member of the Arkansas House of Represen- ment 73 violated Article I of the Federal 1 tatives may serve more than three 2–year Constitution. terms and no member of the Arkansas Sen- With respect to that holding, in a 5–to–2 ate may serve more than two 4–year terms. decision, the Arkansas Supreme Court af- Section 3, the provision at issue in these firmed. U.S. Term Limits, Inc. v. Hill, 316 cases, applies to the Arkansas Congressional Ark. 251, 872 S.W.2d 349, 351 (1994). Writ- Delegation. It provides: ing for a plurality of three justices, Justice ‘‘(a) Any person having been elected to Robert L. Brown concluded that the congres- three or more terms as a member of the sional restrictions in Amendment 73 are un- United States House of Representatives constitutional because the States have no au- from Arkansas shall not be certified as a thority ‘‘to change, add to, or diminish’’ the candidate and shall not be eligible to have requirements for congressional service enu- his/her name placed on the ballot for elec- merated in the Qualifications Clauses. Id., tion to the United States House of Repre- at 265, 872 S.W.2d, at 356. He noted: sentatives from Arkansas. ‘‘(b) Any person having been elected to ‘‘If there is one watchword for representa- two or more terms as a member of the tion of the various states in Congress, it is from Arkansas shall uniformity. Federal legislators speak to not be certified as a candidate and shall national issues that affect the citizens of TTTT not be eligible to have his/her name placed every state The uniformity in qualifi- on the ballot for election to the United cations manSdated786 in Article 1 provides States Senate from Arkansas.’’ the tenor and the fabric for representation in the Congress. Piecemeal restrictions by Amendment 73 states that it is self-executing State would fly in the face of that order.’’ and shall apply to all persons seeking elec- Ibid. tion after January 1, 1993. On November 13, 1992, respondent Bobbie Justice Brown’s plurality opinion also re- Hill, on behalf of herself, similarly situated jected the argument that Amendment 73 is

Arkansas ‘‘citizens, residents, S 785taxpayers ‘‘merely a ballot access amendment,’’ con- and registered voters,’’ and the League of cluding that ‘‘[t]he intent and the effect of Women Voters of Arkansas, filed a complaint Amendment 73 are to disqualify congression- in the Circuit Court for Pulaski County, Ar- al incumbents from further service.’’ Id., at kansas, seeking a declaratory judgment that 265–266, 872 S.W.2d, at 356–357. Justice § 3 of Amendment 73 is ‘‘unconstitutional Brown considered the possibilities that an and void.’’ Her complaint named as defen- excluded candidate might run for Congress dants then-Governor Clinton, other state offi- as a write-in candidate or be appointed to fill cers, the Republican Party of Arkansas, and a vacancy to be ‘‘glimmers of opportunity TTT the Democratic Party of Arkansas. The [that] are faint indeed—so faint in our judg- State of Arkansas, through its Attorney Gen- ment that they cannot salvage Amendment eral, petitioner Winston Bryant, intervened 73 from constitutional attack.’’ Id., at 266, as a party defendant in support of the 872 S.W.2d, at 357. In separate opinions, amendment. Several proponents of the Justice Dudley and Justice Gerald P. Brown

1. The Circuit Court also held that § 3 was sever- Term Limits, Inc. v. Hill, 316 Ark. 251, 270, 872 able from the other provisions of the amend- S.W.2d 349, 359 (1994), and reversed its decision ment, but that the entire amendment was void regarding the enacting clause, id., at 263, 872 under state law for lack of an enacting clause. S.W.2d, at 355. The decision of the Arkansas App. to Pet. for Cert. in No. 93–1456, p. 60a. Supreme Court with respect to those issues of The Arkansas Supreme Court affirmed the Cir- state law is not before us. cuit Court’s decision regarding severability, U.S. 514 U.S. 788 U.S. TERM LIMITS, INC. v. THORNTON 1847 Cite as 115 S.Ct. 1842 (1995) agreed that Amendment 73 violates the Fed- II eral Constitution. As the opinions of the Arkansas Supreme Two justices dissented from the federal Court suggest, the constitutionality of constitutional holding. Justice Hays started Amendment 73 depends critically on the res- from ‘‘the premise that all political authority olution of two distinct issues. The first is resides in the people, limited only by those whether the Constitution forbids States to provisions of the federal or state constitu- add to or alter the qualifications specifically tions specifically to the contrary.’’ Id., at enumerated in the Constitution. The second 281, 872 S.W.2d, at 367. Because his exam- is, if the Constitution does so forbid, whether ination of the text and history of the Quali- fications Clauses convinced him that the the fact that Amendment 73 is formulated as Constitution contains no express or implicit a ballot access restriction rather than as an restriction on the States’ ability to impose outright disqualification is of constitutional additional qualifications on candidates for significance. Our resolution of these issues Congress, Justice Hays concluded that § 3 draws upon our prior resolution of a related is constitutional. Special Chief Justice Cra- but distinct issue: whether Congress has the craft, drawing a distinction between a mea- power to add to or alter the qualifications of sure that ‘‘impose[s] an absolute bar on in- its Members. cumbent succession’’ and a measure that ‘‘merely makes it more difficult for an in- Twenty-six years ago, in Powell v. McCor- cumbent to be elected,’’ id., at 284, 872 mack, 395 U.S. 486, 89 S.Ct. 1944, 23 S.W.2d, at 368, concluded that Amendment L.Ed.2d 491 (1969), we reviewed the history 73 does not even implicate the Qualifications and text of the Qualifications Clauses 2 in a Clauses, and instead is merely a permissible case involving an attempted exclusion S 788of a ballot access restriction. duly elected Member of Congress. The prin- The State of Arkansas, by its Attorney cipal issue was whether the power granted to General, and the intervenors petitioned for each House in Art. I, § 5, cl. 1, to judge the writs of certiorari. Because of the impor- ‘‘Qualifications of its own Members’’ 3 in- tance of the issues, we granted both petitions cludes the power to impose qualifications oth- and S 787consolidated the cases for argument. er than those set forth in the text of the See 512 U.S. 1218, 114 S.Ct. 2703, 129 Constitution. In an opinion by Chief Justice L.Ed.2d 832 (1994). We now affirm. Warren for eight Members of the Court,4 we

2. As we explained, that term may describe more constitute ‘‘qualifications,’’ because ‘‘both sides than the provisions quoted, supra, at 1845: agree that Powell was not ineligible under any of ‘‘In addition to the three qualifications set these provisions.’’ Ibid. We similarly have no forth in Art. I, § 2, Art. I, § 3, cl. 7, authorizes need to resolve that question today: Because the disqualification of any person convicted in an those additional provisions are part of the text of impeachment proceeding from ‘any Office of the Constitution, they have little bearing on honor, Trust or Profit under the United States’; whether Congress and the States may add quali- Art. I, § 6, cl. 2, provides that ‘no Person holding fications to those that appear in the Constitution. any Office under the United States, shall be a Member of either House during his Continuance 3. Art. I, § 5, cl. 1, provides in part: ‘‘Each House in Office’; and § 3 of the 14th Amendment dis- shall be the Judge of the Elections, Returns and qualifies any person ‘who, having previously tak- Qualifications of its own Members, and a Majori- en an oath TTT to support the Constitution of the ty of each shall constitute a Quorum to do busi- United States, shall have engaged in insurrection nessTTTT’’ or rebellion against the same, or given aid or comfort to the enemies thereof.’ It has been 4. Justice Stewart dissented on procedural argued that each of these provisions, as well as grounds, arguing that the case should have been the Guarantee Clause of Article IV and the oath dismissed as moot. See 395 U.S., at 559–561, 89 requirement of Art. VI, cl. 3, is no less a ‘qualifi- S.Ct., at 1983–1985. Other than expressing cation’ within the meaning of Art. I, § 5, than agreement with the characterization of the case those set forth in Art. I, § 2.’’ Powell v. McCor- as raising constitutional issues which ‘‘ ‘touch mack, 395 U.S. 486, 520, n. 41, 89 S.Ct. 1944, the bedrock of our political system [and] strike at 1963, n. 41, 23 L.Ed.2d 491 (1969). the very heart of representative government,’ ’’ In Powell, we saw no need to resolve the id., at 573, 89 S.Ct., at 1991, Justice Stewart did question whether those additional provisions not comment on the merits. 1848 115 SUPREME COURT REPORTER 514 U.S. 788 held that it does not. Because of the obvious review to determine the intent of the Fram- importance of the issue, the Court’s review of ers. Though recognizing that the Constitu- the history and meaning of the relevant con- tional Convention debates themselves were stitutional text was especially thorough. We inconclusive, see id., at 532, 89 S.Ct., at 1969, therefore begin our analysis today with a full we determined that the ‘‘relevant historical statement of what we decided in that case. materials’’ reveal that Congress has no pow- The Issue in Powell er to alter the qualifications in the text of the In November 1966, Adam Clayton Powell, Constitution, id., at 522, 89 S.Ct., at 1964. Jr., was elected from a District in Powell’s Reliance on History to serve in the United States House of Rep- We started our analysis in Powell by ex- resentatives for the 90th Congress. Allega- amining the British experience with qualifica- tions that he had engaged in serious miscon- tions for membership in Parliament, focusing duct while serving as a committee chairman in particular on the experience of John during the 89th Congress led to the appoint- Wilkes. While serving as a member of Par- ment of a Select Committee to determine his liament, Wilkes had published an attack on a eligibility to take his seat. That committee peace treaty with France. This S 790literary found that Powell met the age, citizenship, endeavor earned Wilkes a conviction for sedi- and residency requirements set forth in Art. tious libel and a 22–month prison sentence. I, § 2, cl. 2. The committee also found, In addition, Parliament declared Wilkes ineli- however, that Powell had wrongfully diverted gible for membership and ordered him ex- House funds for the use of others and him- pelled. Despite (or perhaps because of) self and had made false reports on expendi- these difficulties, Wilkes was reelected sever- tures of foreign currency. Based on those al times. Parliament, however, persisted in findings, the House after debate adopted its refusal to seat him. After several years House Resolution 278, excluding S 789Powell of Wilkes’ efforts, the House of Commons from membership in the House, and declared voted to expunge the resolutions that had his seat vacant. See 395 U.S., at 489–493, 89 expelled Wilkes and had declared him ineligi- S.Ct., at 1947–1949. ble, labeling those prior actions ‘‘ ‘subversive Powell and several voters of the District of the rights of the whole body of electors of from which he had been elected filed suit this kingdom.’ ’’ Id., at 528, 89 S.Ct., at 1967, seeking a declaratory judgment that the quoting 22 Parliamentary History of England House Resolution was invalid because Art. I, 1411 (1782) (Parl.Hist.Eng.). After review- § 2, cl. 2, sets forth the exclusive qualifica- ing Wilkes’ ‘‘long and bitter struggle for the tions for House membership. We ultimately right of the British electorate to be repre- accepted that contention, concluding that the sented by men of their own choice,’’ 395 U.S., House of Representatives has no ‘‘authority at 528, 89 S.Ct., at 1967, we concluded in to exclude 5 any person, duly elected by his Powell that ‘‘on the eve of the Constitutional constituents, who meets all the requirements Convention, English precedent stood for the for membership expressly prescribed in the proposition that ‘the law of the land had Constitution.’’ 395 U.S., at 522, 89 S.Ct., at regulated the qualifications of members to 1964 (emphasis in original); see also id., at serve in parliament’ and those qualifications 547, 89 S.Ct., at 1977.6 In reaching that were ‘not occasional but fixed.’ ’’ Ibid. quot- conclusion, we undertook a detailed historical ing 16 Parl.Hist.Eng. 589, 590 (1769).

5. The Powell Court emphasized the word ‘‘ex- was equally applicable to the Senate: ‘‘Since Art. clude’’ because it had been argued that the I, § 5, cl. 1, applies to both Houses of Congress, House Resolution depriving Powell of his seat the scope of the Senate’s power to judge the should be viewed as an expulsion rather than an qualification of its members necessarily is identi- exclusion. Having rejected that submission, the cal to the scope of the House’s power, with the Court expressed no opinion on issues related to exception, of course, that Art. I, § 3, cl. 3, estab- the House’s power to expel a Member who has lishes different age and citizenship requirements been sworn in and seated. for membership in the Senate.’’ Id., at 522, n. 6. Though Powell addressed only the power of the 44, 89 S.Ct., at 1964, n. 44. House, the Court pointed out that its rationale 514 U.S. 792 U.S. TERM LIMITS, INC. v. THORNTON 1849 Cite as 115 S.Ct. 1842 (1995) Against this historical background, we lesson worthy of our attention.’ ’’ 395 U.S., viewed the Convention debates as manifest- at 535, 89 S.Ct., at 1971, quoting 2 Farrand ing the Framers’ intent that the qualifica- 250. We found significant that the Conven- tions in the Constitution be fixed and exclu- tion rejected both Morris’ modification and sive. We found particularly revealing the the Committee’s proposal. debate concerning a proposal made by the We also recognized in Powell that the post- Committee of Detail that would have given Convention ratification debates confirmed Congress the power to add property qualifi- that the Framers understood the qualifica- cations. James Madison argued that such a tions in the Constitution to be fixed and power would vest ‘‘ ‘an improper & danger- unalterable by Congress. For example, we ous power in the Legislature,’ ’’ by which the noted that in response to the antifederalist Legislature ‘‘ ‘can by degrees subvert the charge that the new Constitution favored the Constitution.’ ’’ 395 U.S., at 533–534, 89 wealthy and well born, Alexander Hamilton wrote: S.Ct., at 1970, quoting 2 Records of the Fed- eral Convention of 1787, pp. 249–250 (M. ‘‘ ‘The truth is that there is no method of securing to the rich the preference appre- Farrand ed. 1911) (hereinafter Farrand).7 hended but by prescribing qualifications of Madison continued: ‘‘ ‘A Republic may be property either for those who may elect or S converted into an aristocracy or oligarchy 791 be elected. But this forms no part of the as well by limiting the number capable of power to be conferred upon the national being elected, as the number authorised to governmentTTTT The S 792qualifications of elect.’ ’’ 395 U.S., at 534, 89 S.Ct., at 1970, the persons who may choose or be chosen, quoting 2 Farrand 250. We expressly noted as has been remarked upon other occa- that the ‘‘parallel between Madison’s argu- sions, are defined and fixed in the Consti- ments and those made in Wilkes’ behalf is tution, and are unalterable by the legisla- striking.’’ 395 U.S., at 534, 89 S.Ct., at 1971. ture.’ ’’ 395 U.S., at 539, 89 S.Ct., at 1973, quoting The Federalist No. 60, p. 371 (C. The Framers further revealed their con- Rossiter ed. 1961) (emphasis added) (here- cerns about congressional abuse of power inafter The Federalist). when Gouverneur Morris suggested modify- We thus attached special significance to ing the proposal of the Committee of Detail ‘‘Hamilton’s express reliance on the immuta- to grant Congress unfettered power to add bility of the qualifications set forth in the qualifications. We noted that Hugh William- Constitution.’’ 395 U.S., at 540, 89 S.Ct., at son ‘‘expressed concern that if a majority of 1974. Moreover, we reviewed the debates at the legislature should happen to be ‘com- the state conventions and found that they posed of any particular description of men, of ‘‘also demonstrate the Framers’ understand- lawyers for example, TTT the future elections ing that the qualifications for members of might be secured to their own body.’ ’’ Id., Congress had been fixed in the Constitution.’’ at 535, 89 S.Ct., at 1971, quoting 2 Farrand Ibid.; see, e.g., id., at 541, 89 S.Ct., at 1974, 250. We noted, too, that Madison empha- citing 3 Debates on the Adoption of the sized the British Parliament’s attempts to Federal Constitution 8 (J. Elliot ed. 1863) regulate qualifications, and that he observed: (hereinafter Elliot’s Debates) (Wilson Carey ‘‘ ‘[T]he abuse they had made of it was a Nicholas, Virginia).8

7. Though we recognized that Madison was re- of the Clauses indicated that the Framers did not sponding to a proposal that would have allowed limit the power of the House to impose addition- Congress to impose property restrictions, we not- al qualifications for membership. Id., at 537, 89 ed that ‘‘Madison’s argument was not aimed at S.Ct., at 1972 (noting that the Committee of the imposition of a property qualification as Style, which edited the Qualifications Clauses to such, but rather at the delegation to the Congress incorporate ‘‘their present negative form,’’ had of the discretionary power to establish any quali- ‘‘ ‘no authority from the Convention to make fications.’’ Id., at 534, 89 S.Ct., at 1971. alterations of substance in the Constitution as 8. Our examination of the history also caused us voted by the Convention, nor did it purport to do to reject the argument that the negative phrasing so’ ’’); id., at 539, 89 S.Ct., at 1973, quoting C. 1850 115 SUPREME COURT REPORTER 514 U.S. 792

The exercise by Congress of its power to choose whom they please to govern them.’ ’’ judge the qualifications of its Members fur- Id., at 547, 89 S.Ct., at 1977, quoting 2 Elli- ther confirmed this understanding. We con- ot’s Debates 257 (A. Hamilton, New York). cluded that, during the first 100 years of its Our opinion made clear that this broad existence, ‘‘Congress strictly limited its pow- principle incorporated at least two fundamen- 10 er to judge the qualifications of its members tal ideas. First, we emphaSsized794 the ega- to those enumerated in the Constitution.’’ litarian concept that the opportunity to be 395 U.S., at 542, 89 S.Ct., at 1974. elected was open to all.11 We noted in par- As this elaborate summary reveals, our ticular Madison’s statement in The Federal- historical analysis in Powell was both de- ist that ‘‘ ‘[u]nder these reasonable limita- tailed and persuasive. We thus conclude tions [enumerated in the Constitution], the now, as we did in Powell, that history shows door of this part of the federal government is open to merit of every description, whether that, with S 793respect to Congress, the Fram- ers intended the Constitution to establish native or adoptive, whether young or old, and fixed qualifications.9 without regard to poverty or wealth, or to any particular profession of religious faith.’ ’’ Powell’s Reliance on Democratic Principles Powell, 395 U.S., at 540, n. 74, 89 S.Ct., at In Powell, of course, we did not rely solely 1973, n. 74, quoting The Federalist No. 52, at on an analysis of the historical evidence, but 326. Similarly, we noted that Wilson Carey instead complemented that analysis with ‘‘an Nicholas defended the Constitution against examination of the basic principles of our the charge that it ‘‘violated democratic princi- democratic system.’’ Id., at 548, 89 S.Ct., at ples’’ by arguing: ‘‘ ‘It has ever been consid- 1978. We noted that allowing Congress to ered a great security to liberty, that very few impose additional qualifications would violate should be excluded from the right of being that ‘‘fundamental principle of our represen- chosen to the legislature. This Constitution tative democracy TTT ‘that the people should has amply attended to this idea. We find no

Warren, The Making of the Constitution 422, n. 1 of the Qualifications Clauses; they adopted that (1947) (hereinafter Warren); see also 2 Farrand wording nonetheless. There thus is no merit 553 (the Committee of Style was appointed ‘‘to either to the dissent’s suggestion that Story was revise the stile and arrange the articles which the first to articulate the expressio unius argu- had been agreed to’’). ment, see post, at 1885–1886, or to the dissent’s assertion that that argument is completely with- 9. The text of the Qualifications Clauses also sup- out merit. ports the result we reached in Powell. John Dickinson of Delaware observed that the enu- 10. The principle also incorporated the more meration of a few qualifications ‘‘would by impli- practical concern that reposing the power to cation tie up the hands of the Legislature from adopt qualifications in Congress would lead to a supplying omissions.’’ 2 Farrand 123. Justice self-perpetuating body to the detriment of the Story made the same point: new Republic. See, e.g., Powell, 395 U.S., at 533–534, 89 S.Ct., at 1970, quoting 2 Farrand ‘‘It would seem but fair reasoning upon the plainest principles of interpretation, that when 250 (Madison) (‘‘ ‘If the Legislature could regu- the constitution established certain qualifica- late [the qualification of electors or elected], it tions, as necessary for office, it meant to exclude can by degrees subvert the Constitution. A Re- all others, as prerequisites. From the very na- public may be converted into an aristocracy or ture of such a provision, the affirmation of these oligarchy as well by limiting the number capable qualifications would seem to imply a negative of of being elected, as the number authorised to all others.’’ 1 J. Story, Commentaries on the elect’ ’’); 395 U.S., at 534–535, 89 S.Ct., at 1970 Constitution of the United States § 625 (3d ed. (citing statements of Williamson and Madison 1858) (hereinafter Story). See also Warren 421 emphasizing the potential for legislative abuse). (‘‘As the Constitution TTT expressly set forth the qualifications of age, citizenship, and residence, 11. Contrary to the dissent’s suggestion, post, at and as the Convention refused to grant to Con- 1891, we do not understand Powell as reading gress power to establish qualifications in general, the Qualifications Clauses ‘‘to create a personal the maxim expressio unius exclusio alterius right to be a candidate for Congress.’’ The would seem to apply’’). Clauses did, however, further the interest of the As Dickinson’s comment demonstrates, the people of the entire Nation in keeping the door to Framers were well aware of the expressio unius the National Legislature open to merit of every argument that would result from their wording description. 514 U.S. 796 U.S. TERM LIMITS, INC. v. THORNTON 1851 Cite as 115 S.Ct. 1842 (1995) qualifications required except those of age Powell thus establishes two important and residence.’ ’’ 395 U.S., at 541, 89 S.Ct., propositions: first, that the ‘‘relevant histori- at 1974, quoting 3 Elliot’s Debates 8. cal materials’’ compel the conclusion that, at least with respect to qualifications imposed Second, we recognized the critical postu- by Congress, the Framers intended the qual- late that sovereignty is vested in the people, ifications listed in the Constitution to be ex- and that sovereignty confers on the people clusive; and second, that that conclusion is the right to choose freely their representa- equally compelled by an understanding of the tives to the National Government. For ex- ‘‘fundamental principle of our representative ample, we noted that ‘‘Robert Livingston TTT democracy TTT ‘that the people should choose endorsed this same fundamental principle: whom they please to govern them.’ ’’ 395 ‘The people are the best judges who ought to U.S., at 547, 89 S.Ct., at 1977. represent them. To dictate and control Powell’s Holding them, to tell them whom they shall not elect, Petitioners argue somewhat half-heartedly is to abridge their natural S 795rights.’ ’’ 395 that the narrow holding in Powell, which U.S., at 541, n. 76, 89 S.Ct., at 1974, n. 76, involved the power of the House to exclude quoting 2 Elliot’s Debates 292–293. Similar- a Member pursuant to Art. I, § 5, does not ly, we observed that ‘‘[b]efore the New York control the more general question whether convention TTT, Hamilton emphasized: ‘The Congress has the S power to add qualifica- true principle of a republic is, that the people 796 tions. Powell, however, is not susceptible should choose whom they please to govern to such a narrow reading. Our conclusion them. Representation is imperfect in pro- that Congress may not alter or add to the portion as the current of popular favor is qualifications in the Constitution was inte- checked. This great source of free govern- gral to our analysis and outcome. See, e.g., ment, popular election, should be perfectly id., at 540, 89 S.Ct., at 1973 (noting ‘‘Fram- pure, and the most unbounded liberty al- ers’ understanding that the qualifications lowed.’ ’’ 395 U.S., at 540–541, 89 S.Ct., at for members of Congress had been fixed in 1974, quoting 2 Elliot’s Debates 257. Quot- the Constitution’’). Only two Terms ago we ing from the statement made in 1807 by the confirmed this understanding of Powell in Chairman of the House Committee on Elec- Nixon v. United States, 506 U.S. 224, 113 tions, we noted that ‘‘restrictions upon the S.Ct. 732, 122 L.Ed.2d 1 (1993). After not- people to choose their own representatives ing that the three qualifications for mem- must be limited to those ‘absolutely neces- bership specified in Art. I, § 2, are of ‘‘a sary for the safety of the society.’ ’’ 395 precise, limited nature’’ and ‘‘unalterable by U.S., at 543, 89 S.Ct., at 1975, quoting 17 the legislature,’’ we explained: Annals of Cong. 874 (1807). Thus, in Powell, ‘‘Our conclusion in Powell was based on we agreed with the sentiment expressed on the fixed meaning of ‘[q]ualifications’ set behalf of Wilkes’ admission to Parliament: forth in Art I, § 2. The claim by the ‘‘ ‘That the right of the electors to be repre- House that its power to ‘be the Judge of sented by men of their own choice, was so the Elections, Returns and Qualifications essential for the preservation of all their of its own Members’ was a textual commit- other rights, that it ought to be considered as ment of unreviewable authority was defeat- one of the most sacred parts of our constitu- ed by the existence of this separate provi- tion.’ ’’ 395 U.S., at 534, n. 65, 89 S.Ct., at sion specifying the only qualifications 1971, n. 65, quoting 16 Parl.Hist.Eng. 589– which might be imposed for House mem- 590 (1769). bership.’’ Id., at 237, 113 S.Ct., at 740).12

12. Justice THOMAS’ dissent purports to agree Constitution does not speak either expressly or with the outcome of Powell, but rejects the rea- by necessary implication—the Federal Govern- soning in the opinion. The dissent treats Powell ment lacks that power and the States enjoy it.’’ as simply an application of the ‘‘default rule’’ Post, at 1876, 1889–1890, 1894–1895. However, that if ‘‘the Constitution is silent about the exer- there is not a word in the Court’s opinion in cise of a particular power—that is, where the Powell suggesting that the decision rested on the 1852 115 SUPREME COURT REPORTER 514 U.S. 797

S 797Unsurprisingly, the state courts and lower sented in these cases. For petitioners argue federal courts have similarly concluded that that whatever the constitutionality of addi- Powell conclusively resolved the issue wheth- tional qualifications for membership imposed er Congress has the power to impose addi- by Congress, the historical and textual mate- tional qualifications. See, e.g., Joyner v. rials discussed in Powell do not support the Mofford, 706 F.2d 1523, 1528 (CA9 1983) (‘‘In conclusion that the Constitution prohibits ad- Powell TTT , the Supreme Court accepted this ditional qualifications imposed by States. In restrictive view of the Qualifications Clause— the absence of such a constitutional prohibi- at least as applied to Congress’’); Michel v. tion, petitioners argue, the Tenth Amend- Anderson, 14 F.3d 623 (CADC 1994) (citing ment and the principle of reserved powers Nixon ’s description of Powell ’s holding); Stumpf v. Lau, 108 Nev. 826, 830, 839 P.2d require that States be allowed to add such 120, 122 (1992) (citing Powell for the proposi- qualifications. tion that ‘‘[n]ot even Congress has the power Before addressing these arguments, we to alter qualifications for these constitutional find it appropriate to take note of the strik- federal officers’’).13 ing unanimity among the courts that have [2] In sum, after examining Powell ’s S 798 considered the issue. None of the over- historical analysis and its articulation of the whelming array of briefs submitted by the ‘‘basic principles of our democratic system,’’ parties and amici has called to our attention we reaffirm that the qualifications for service in Congress set forth in the text of the even a single case in which a state court or Constitution are ‘‘fixed,’’ at least in the sense federal court has approved of a State’s addi- that they may not be supplemented by Con- tion of qualifications for a Member of Con- gress. gress. To the contrary, an impressive num- ber of courts have determined that States III lack the authority to add qualifications. See, Our reaffirmation of Powell does not nec- e.g., Chandler v. Howell, 104 Wash. 99, 175 essarily resolve the specific questions pre- P. 569 (1918); Ekwall v. Stadelman, 146 Or.

‘‘default rule’’ that undergirds the dissent’s entire apply the dormant Commerce Clause, see, e.g., analysis. On the contrary, as the excerpt from id., at 179–180, 115 S.Ct., at 1335–1336); Bendix Nixon quoted in the text plainly states, our con- Autolite Corp. v. Midwesco Enterprises, Inc., 486 clusion in Powell was based on our understand- U.S. 888, 108 S.Ct. 2218, 100 L.Ed.2d 896 ing of the ‘‘fixed meaning of ‘[q]ualifications’ set (1988). forth in Art. I, § 2.’’ We concluded that the Framers affirmatively intended the qualifications 13. Our decision in Powell and its historical anal- set forth in the text of the Constitution to be ysis were consistent with prior decisions from exclusive in order to effectuate the principle that state courts. For example, in State ex rel. John- in a representative democracy the people should son v. Crane, 65 Wyo. 189, 197 P.2d 864 (1948), choose whom they please to govern them. the Wyoming Supreme Court undertook a de- Moreover, the Court has never treated the dis- tailed historical analysis and concluded that the sent’s ‘‘default rule’’ as absolute. In McCulloch Qualifications Clauses were exclusive. Several v. Maryland, 4 Wheat. 316, 4 L.Ed. 579 (1819), other courts reached the same result, though for example, Chief Justice Marshall rejected the without performing the same detailed historical argument that the Constitution’s silence on state analysis. See, e.g., Hellmann v. Collier, 217 Md. power to tax federal instrumentalities requires 93, 141 A.2d 908 (1958); State ex rel. Chandler v. that States have the power to do so. Under the Howell, 104 Wash. 99, 175 P. 569 (1918); State dissent’s unyielding approach, it would seem that ex rel. Eaton v. Schmahl, 140 Minn. 219, 167 McCulloch was wrongly decided. Similarly, the N.W. 481 (1918); see generally State ex rel. John- dissent’s approach would invalidate our dormant son v. Crane, 65 Wyo., at 204–213, 197 P.2d, at Commerce Clause jurisprudence, because the 869–874 (citing cases). Constitution is clearly silent on the subject of state legislation that discriminates against inter- The conclusion and analysis were also consis- state commerce. However, though Justice tent with the positions taken by commentators THOMAS has endorsed just that argument, see, and scholars. See, e.g., n. 9, supra; see also e.g., Oklahoma Tax Comm’n v. Jefferson Lines, Warren 412–422 (discussing history and conclud- Inc., 514 U.S. 175, 115 S.Ct. 1331, 131 L.Ed.2d ing that ‘‘[t]he elimination of all power in Con- 261 (1995) (SCALIA, J., concurring in judgment, gress to fix qualifications clearly left the provi- joined by THOMAS, J.), the Court has consistent- sions of the Constitution itself as the sole source ly rejected that argument and has continued to of qualifications’’). 514 U.S. 800 U.S. TERM LIMITS, INC. v. THORNTON 1853 Cite as 115 S.Ct. 1842 (1995) 439, 446, 30 P.2d 1037, 1040 (1934); Stockton cer of the union, deriving his powers and v. McFarland, 56 Ariz. 138, 144, 106 P.2d qualifications from the constitution, and nei- 328, 330 (1940); State ex rel. Johnson v. ther created by, dependent upon, nor con- Crane, 65 Wyo. 189, 197 P.2d 864 (1948); trollable by, the states’’); 1 J. Kent, Com- Dillon v. Fiorina, 340 F.Supp. 729, 731 mentaries on American Law 228, n. a (3d ed. (N.M.1972); Stack v. Adams, 315 F.Supp. 1836) (‘‘[T]he objections to the existence of 1295, 1297–1298 (ND Fla.1970); Bucking- any such power [on the part of the States to ham v. State, 42 Del. 405, 35 A.2d 903, 905 add qualifications are] TTT too palpable and (1944); Stumpf v. Lau, 108 Nev. 826, 830, weighty to admit of any discussion’’); G. 839 P.2d 120, 123 (1992); Danielson v. Fitz- McCrary, American Law of Elections § 322 simmons, 232 Minn. 149, 151, 44 N.W.2d (4th ed. 1897) (‘‘It is not competent for any 484, 486 (1950); In re Opinion of Judges, 79 State to add to or in any manner change the

S.D. 585, 587, S 799116 N.W.2d 233, 234 (1962). qualifications for a Federal office, as pre- Courts have struck down state-imposed scribed by the Constitution or laws of the qualifications in the form of term limits, see, United States’’); T. Cooley, General Princi- e.g., Thorsted v. Gregoire, 841 F.Supp. 1068, ples of Constitutional Law 268 (2d ed. 1891) 1081 (WD Wash.1994); Stumpf v. Lau, 108 (‘‘The Constitution and laws of the United Nev., at 830, 839 P.2d, at 123, district resi- States determine what shall be the qualifica- dency requirements, see, e.g., Hellmann v. tions for federal offices, and state Collier, 217 Md. 93, 100, 141 A.2d 908, 911 S 800constitutions and laws can neither add to (1958); Dillon v. Fiorina, 340 F.Supp., at nor take away from them’’); C. Burdick, 731; Exon v. Tiemann, 279 F.Supp. 609, 613 Law of the American Constitution 160 (1922) (D.Neb.1968); State ex rel. Chavez v. Evans, (‘‘It is clearly the intention of the Constitu- 79 N.M. 578, 581, 446 P.2d 445, 448 (1968) tion that all persons not disqualified by the (per curiam ), loyalty oath requirements, terms of that instrument should be eligible see, e.g., Shub v. Simpson, 196 Md. 177, 199, to the federal office of Representative’’); id., 76 A.2d 332, 341, appeal dism’d, 340 U.S. at 165 (‘‘It is as clear that States have no 881, 71 S.Ct. 198, 95 L.Ed. 640 (1950); In re more right to add to the constitutional quali- O’Connor, 173 Misc. 419, 421, 17 N.Y.S.2d fications of Senators than they have to add 758, 760 (Super.Ct.1940), and restrictions on to those for Representatives’’); Warren 422 those convicted of felonies, see, e.g., Applica- (‘‘The elimination of all power in Congress to tion of Ferguson, 57 Misc.2d 1041, 1043, 294 fix qualifications clearly left the provisions of N.Y.S.2d 174, 176 (Super.Ct.1968); Daniel- the Constitution itself as the sole source of 14 son v. Fitzsimmons, 232 Minn., at 151, 44 qualifications’’). This impressive and uni- N.W.2d, at 486; State ex rel. Eaton v. form body of judicial decisions and learned Schmahl, 140 Minn. 219, 220, 167 N.W. 481 commentary indicates that the obstacles con- (1918) (per curiam). Prior to Powell, the fronting petitioners are formidable indeed. commentators were similarly unanimous. Petitioners argue that the Constitution See, e.g., 1 W. Blackstone, Commentaries, contains no express prohibition against state- Appendix 213 (S. Tucker ed. 1803) (‘‘[T]hese added qualifications, and that Amendment 73 provisions, as they require qualifications is therefore an appropriate exercise of a which the constitution does not, may possi- State’s reserved power to place additional bly be found to be nugatory’’); 1 Story restrictions on the choices that its own voters § 627 (each Member of Congress is ‘‘an offi- may make. We disagree for two indepen-

14. More recently, the commentators have split, Creighton L.Rev. 321 (1993), and others arguing with some arguing that state-imposed term limits that they are not, see, e.g., Lowenstein, Are Con- are constitutional, see, e.g., Gorsuch & Guzman, gressional Term Limits Constitutional?, 18 Harv. Will the Gentlemen Please Yield? A Defense of J.L. & Pub.Policy 1 (1994); Eid & Kolbe, The the Constitutionality of State–Imposed Term New Anti–Federalism: The Constitutionality of Limitation, 20 Hofstra L.Rev. 341 (1991); Hills, State–Imposed Limits on Congressional Terms of A Defense of State Constitutional Limits on Fed- Office, 69 Denver L.Rev. 1 (1992); Comment, eral Congressional Terms, 53 U.Pitt.L.Rev. 97 Congressional Term Limits: Unconstitutional by (1991); Safranek, Term Limitations: Do the Winds of Change Blow Unconstitutional?, 26 Initiative, 67 Wash.L.Rev. 415 (1992). 1854 115 SUPREME COURT REPORTER 514 U.S. 800 dent reasons. First, we conclude that the measure of sovereign authority. They do so, power to add qualifications is not within the however, only to the extent that the Constitu- ‘‘original powers’’ of the States, and thus is tion has not divested them of their original not reserved to the States by the Tenth powers and transferred those powers to the Amendment. Second, even if States pos- Federal Government.’’ Garcia v. San Anto- sessed some original power in this area, we nio Metropolitan Transit Authority, 469 conclude that the Framers inStended801 the U.S. 528, 549, 105 S.Ct. 1005, 1016–17, 83 Constitution to be the exclusive source of L.Ed.2d 1016 (1985) (internal quotation qualifications for Members of Congress, and marks and citation omitted) (emSphasis802 add- that the Framers thereby ‘‘divested’’ States ed); see also New York v. United States, 505 of any power to add qualifications. U.S. 144, 155–156, 112 S.Ct. 2408, 2417–2418, 120 L.Ed.2d 120 (1992). [3] The ‘‘plan of the convention’’ as illu- minated by the historical materials, our opin- Source of the Power ions, and the text of the Tenth Amendment [5, 6] Contrary to petitioners’ assertions, draws a basic distinction between the powers the power to add qualifications is not part of of the newly created Federal Government the original powers of sovereignty that the and the powers retained by the pre-existing Tenth Amendment reserved to the States. sovereign States. As Chief Justice Marshall Petitioners’ Tenth Amendment argument explained, ‘‘it was neither necessary nor misconceives the nature of the right at issue proper to define the powers retained by the because that Amendment could only ‘‘re- States. These powers proceed, not from the serve’’ that which existed before. As Justice people of America, but from the people of the Story recognized, ‘‘the states can exercise no several States; and remain, after the adop- powers whatsoever, which exclusively spring tion of the constitution, what they were be- out of the existence of the national govern- fore, except so far as they may be abridged ment, which the constitution does not dele- by that instrument.’’ Sturges v. Crowninsh- gate to themTTTT No state can say, that it ield, 4 Wheat. 122, 193, 4 L.Ed. 529 (1819). has reserved, what it never possessed.’’ 1 This classic statement by the Chief Justice Story § 627. endorsed Hamilton’s reasoning in The Feder- [7] Justice Story’s position thus echoes alist No. 32 that the plan of the Constitution- that of Chief Justice Marshall in McCulloch al Convention did not contemplate ‘‘[a]n en- v. Maryland, 4 Wheat. 316, 4 L.Ed. 579 tire consolidation of the States into one com- (1819). In McCulloch, the Court rejected plete national sovereignty,’’ but only a partial the argument that the Constitution’s silence consolidation in which ‘‘the State govern- on the subject of state power to tax corpora- ments would clearly retain all the rights of tions chartered by Congress implies that the sovereignty which they before had, and States have ‘‘reserved’’ power to tax such which were not, by that act, exclusively dele- federal instrumentalities. As Chief Justice gated to the United States.’’ The Federalist Marshall pointed out, an ‘‘original right to No. 32, at 198. The text of the Tenth tax’’ such federal entities ‘‘never existed, and Amendment unambiguously confirms this the question whether it has been surren- principle: dered, cannot arise.’’ Id., at 430. See also ‘‘The powers not delegated to the United Crandall v. Nevada, 6 Wall. 35, 46, 18 L.Ed. States by the Constitution, nor prohibited 745 (1868). In language that presaged Jus- by it to the States, are reserved to the tice Story’s argument, Chief Justice Marshall States respectively, or to the people.’’ concluded: ‘‘This opinion does not deprive [4] As we have frequently noted, ‘‘[t]he the States of any resources which they origi- States unquestionably do retain a significant nally possessed.’’ 4 Wheat., at 436.15

15. Thus, contrary to the dissent’s suggestion, the States despite constitutional silence. In- post, at 1880, Justice Story was not the first, stead, as Chief Justice Marshall’s opinion in only, or even most influential proponent of the McCulloch reveals, that principle has been a part principle that certain powers are not reserved to of our jurisprudence for over 175 years. 514 U.S. 805 U.S. TERM LIMITS, INC. v. THORNTON 1855 Cite as 115 S.Ct. 1842 (1995)

[8] S 803With respect to setting qualifica- qualifications for a representative, as they tions for service in Congress, no such right have for a presidentTTTT It is no original existed before the Constitution was ratified. prerogative of state S 804power to appoint a The contrary argument overlooks the revolu- representative, a senator, or president for tionary character of the Government that the the union.’’ Ibid.16 Framers conceived. Prior to the adoption of We believe that the Constitution reflects the Constitution, the States had joined to- the Framers’ general agreement with the gether under the Articles of Confederation. approach later articulated by Justice Story. In that system, ‘‘the States retained most of For example, Art. I, § 5, cl. 1, provides: their sovereignty, like independent nations ‘‘Each House shall be the Judge of the Elec- bound together only by treaties.’’ Wesberry tions, Returns and Qualifications of its own v. Sanders, 376 U.S. 1, 9, 84 S.Ct. 526, 531, Members.’’ The text of the Constitution 11 L.Ed.2d 481 (1964). After the Constitu- thus gives the representatives of all the peo- tional Convention convened, the Framers ple the final say in judging the qualifications were presented with, and eventually adopted of the representatives of any one State. For a variation of, ‘‘a plan not merely to amend this reason, the dissent falters when it states the Articles of Confederation but to create an that ‘‘the people of have no say over entirely new National Government with a whom the people of Massachusetts select to National Executive, National Judiciary, and a represent them in Congress.’’ Post, at 1882. National Legislature.’’ Id., at 10, 84 S.Ct., at 531. In adopting that plan, the Framers Two other sections of the Constitution fur- envisioned a uniform national system, reject- ther support our view of the Framers’ vision. ing the notion that the Nation was a collec- First, consistent with Story’s view, the Con- tion of States, and instead creating a direct stitution provides that the salaries of repre- link between the National Government and sentatives should ‘‘be ascertained by Law, the people of the United States. See, e.g., and paid out of the Treasury of the United FERC v. Mississippi, 456 U.S. 742, 791, 102 States,’’ Art. I, § 6, rather than by individual S.Ct. 2126, 2154, 72 L.Ed.2d 532 (1982) States. The salary provisions reflect the (O’CONNOR, J., concurring in judgment in view that representatives owe their alle- part and dissenting in part) (‘‘The Constitu- giance to the people, and not to the States. tion TTT permitt[ed] direct contact between Second, the provisions governing elections the National Government and the individual reveal the Framers’ understanding that pow- citizen’’). In that National Government, rep- ers over the election of federal officers had to resentatives owe primary allegiance not to be delegated to, rather than reserved by, the the people of a State, but to the people of the States. It is surely no coincidence that the Nation. As Justice Story observed, each context of federal elections provides one of Member of Congress is ‘‘an officer of the the few areas in which the Constitution ex- union, deriving his powers and qualifications pressly requires action by the States, namely from the constitution, and neither created by, that ‘‘[t]he Times, Places and Manner of dependent upon, nor controllable by, the holding Elections for Senators and Represen- statesTTTT Those officers owe their exis- tatives, shall be S 805prescribed in each State tence and functions to the united voice of the by the Legislature thereof.’’ Art. I, § 4, cl. whole, not of a portion, of the people.’’ 1 1. This duty parallels the duty under Article Story § 627. Representatives and Senators II that ‘‘Each State shall appoint, in such are as much officers of the entire Union as is Manner as the Legislature thereof may di- the President. States thus ‘‘have just as rect, a Number of Electors.’’ Art. II, § 1, cl. much right, and no more, to prescribe new 2. These Clauses are express delegations of

16. The Constitution’s provision for election of some aspect of original state power. Of course, Senators by the state legislatures, see Art. I, § 3, with the adoption of the Seventeenth Amend- cl. 1, is entirely consistent with this view. The ment, state power over the election of Senators power of state legislatures to elect Senators was eliminated, and Senators, like Representa- comes from an express delegation of power from tives, were elected directly by the people. the Constitution, and thus was not at all based on 1856 115 SUPREME COURT REPORTER 514 U.S. 805 power to the States to act with respect to cratic system’’ all demonstrate that the Qual- federal elections.17 ifications Clauses were intended to preclude the States from exercising any such power This conclusion is consistent with our pre- and to fix as exclusive the qualifications in vious recognition that, in certain limited con- the Constitution. texts, the power to regulate the incidents of the federal system is not a reserved power of Much of the historical analysis was under- the States, but rather is delegated by the taken by the Court in Powell. See supra, at Constitution. Thus, we have noted that 1848–1850. There is, however, additional ‘‘[w]hile, in a loose sense, the right to vote for historical evidence that pertains directly to representatives in Congress is sometimes the power of the States. That evidence, spoken of as a right derived from the states, though perhaps not as extensive as that re- TTT this statement is true only in the sense viewed in Powell, leads unavoidably to the that the states are authorized by the Consti- conclusion that the States lack the power to tution, to legislate on the subject as provided add qualifications. by § 2 of Art. I.’’ United States v. Classic, The Convention and Ratification Debates 313 U.S. 299, 315, 61 S.Ct. 1031, 1037, 85 The available affirmative evidence indi- L.Ed. 1368 (1941). Cf. Hawke v. Smith, No. cates the Framers’ intent that States have no 1, 253 U.S. 221, 230, 40 S.Ct. 495, 64 L.Ed. role in the setting of qualifications. In Fed- 871 (1920) (‘‘[T]he power to ratify a proposed eralist Paper No. 52, dealing with the House amendment to the Federal Constitution has of Representatives, Madison addressed the its source in the Federal Constitution. The ‘‘qualifications of the electors and the elect- act of ratification by the State derives its ed.’’ The Federalist No. 52, at 325. Madi- authority from the Federal Constitution to son first noted the difficulty in achieving which the State and its people have alike uniformity in the qualifications for electors, assented’’). which resulted in the Framers’ decision to In short, as the Framers recognized, elect- require only that the qualifications for feder- ing representatives to the National Legisla- al electors be the same as those for state ture was a new right, arising from the Con- electors. Madison argued that such a deci- stitution itself. The Tenth Amendment thus sion ‘‘must be satisfactory to every State, provides no basis for concluding that the because it is comfortable to the standard States possess reserved power to add qualifi- already established, or which may be estab- cations to those that are fixed in the Consti- lished, by the State itself.’’ Id., at 326. tution. Instead, any state power to set the Madison then explicitly contrasted the state qualifications for membership in Congress control over the qualifications of electors with the lack of state control over the qualifi- must derive not from the reserved powers of cations of the elected: state sovereignty, but rather from the dele- gated powers of national sovereignty. In the ‘‘The qualifications of the elected, being absence of any constitutional delegation to less carefully and properly defined by the the States of power to add qualifications to State constitutions, and being at the same those enumerated in the Constitution, such a time more susceptible of uniformity, have been very properly considered and power does not exist. S 807 regulated by the convention. A represen- The Preclusion of State Power S 806 tative of the United States must be of the [9] Even if we believed that States pos- age of twenty-five years; must have been sessed as part of their original powers some seven years a citizen of the United States; control over congressional qualifications, the must, at the time of his election be an text and structure of the Constitution, the inhabitant of the State he is to represent; relevant historical materials, and, most im- and, during the time of his service must be portantly, the ‘‘basic principles of our demo- in no office under the United States. Un-

17. The Clauses also reflect the idea that the Con- of Congress as federal officers. stitution treats both the President and Members 514 U.S. 809 U.S. TERM LIMITS, INC. v. THORNTON 1857 Cite as 115 S.Ct. 1842 (1995) der these reasonable limitations, the door those for state electors. As Madison noted, of this part of the federal government is allowing States to differentiate between the open to merit of every description, whether qualifications for state and federal electors native or adoptive, whether young or old, ‘‘would have rendered too dependent on the and without regard to poverty or wealth, State governments that branch of the federal or to any particular profession of religious government which ought to be dependent on faith.’’ Ibid.18 the people alone.’’ The Federalist No. 52, at

S 808Madison emphasized this same idea in 326. Similarly, in Art. I, § 4, cl. 1, though The Federalist No. 57: giving the States the freedom to regulate the ‘‘Who are to be the objects of popular ‘‘Times, Places and Manner of holding Elec- choice? Every citizen whose merit may tions,’’ the Framers created a safeguard recommend him to the esteem and confi- against state abuse by giving Congress the dence of his country. No qualification of power to ‘‘by Law make or alter such Regu- wealth, of birth, of religious faith, or of lations.’’ The Convention debates make civil profession is permitted to fetter the clear that the Framers’ overriding concern judgment or disappoint the inclination of was the potential for States’ abuse of the

the people.’’ The Federalist No. 57, at 351 power to set the S 809‘‘Times, Places and Man- (emphasis added). ner’’ of elections. Madison noted that ‘‘[i]t The provisions in the Constitution govern- was impossible to foresee all the abuses that ing federal elections confirm the Framers’ might be made of the discretionary power.’’ intent that States lack power to add qualifi- 2 Farrand 240. Gouverneur Morris feared cations. The Framers feared that the di- that ‘‘the States might make false returns verse interests of the States would under- and then make no provisions for new elec- mine the National Legislature, and thus they tions.’’ Id., at 241. When Charles Pinckney adopted provisions intended to minimize the and John Rutledge moved to strike the con- possibility of state interference with federal gressional safeguard, the motion was soundly elections. For example, to prevent discrimi- defeated. Id., at 240–241. As Hamilton la- nation against federal electors, the Framers ter noted: ‘‘Nothing can be more evident required in Art. I, § 2, cl. 1, that the qualifi- than that an exclusive power of regulating cations for federal electors be the same as elections for the national government, in the

18. The dissent places a novel and implausible Finally the dissent argues that ‘‘Madison could interpretation on this paragraph. Consistent not possibly have been rebuking the States for with its entire analysis, the dissent reads Madi- setting unduly high qualifications for their repre- son as saying that the sole purpose of the Qualifi- sentatives in Congress,’’ post, at 1901, and sug- cations Clauses was to set minimum qualifica- gests that Madison’s comments do not reflect ‘‘an tions that would prevent the States from sending implicit criticism of the States for setting unduly incompetent representatives to Congress; in oth- high entrance barriers,’’ post, at 1902. We dis- er words, Madison viewed the Clauses as pre- agree. Though the dissent attempts to minimize venting the States from opening the door to this the extensiveness of state-imposed qualifications part of the federal service too widely. See post, by focusing on the qualifications that States im- at 1901–1902. posed on delegates to Congress and the age re- The text of The Federalist No. 52 belies the strictions that they imposed on state legislators, dissent’s reading. First, Madison emphasized the dissent neglects to give appropriate attention that ‘‘[t]he qualifications of the elected TTT [were] to the abundance of property, religious, and oth- more susceptible of uniformity.’’ His emphasis er qualifications that States imposed on state on uniformity would be quite anomalous if he envisioned that States would create for their elected officials. As we describe in some detail, representatives a patchwork of qualifications. infra, at 1864–1866, nearly every State had prop- Second, the idea that Madison was in fact con- erty qualifications, and many States had religious cerned that States would open the doors to na- qualifications, term limits, or other qualifica- tional service too widely is entirely inconsistent tions. As Madison surely recognized, without a with Madison’s emphasizing that the Constitu- constitutional prohibition, these qualifications tion kept ‘‘the door TTT open to merit of every could be applied to federal representatives. We description, whether native or adoptive, whether cannot read Madison’s comments on the ‘‘open young or old, and without regard to poverty or door’’ of the Federal Government as anything but wealth, or to any particular profession of reli- a rejection of the ‘‘unduly high’’ barriers im- gious faith.’’ The Federalist No. 52, at 326. posed by States. 1858 115 SUPREME COURT REPORTER 514 U.S. 809 hands of the State legislatures, would leave In light of the Framers’ evident concern the existence of the Union entirely at their that States would try to undermine the Na- mercy.’’ The Federalist No. 59, at 363. See tional Government, they could not have in- also ibid. (one justification for Times, Places tended States to have the power to set and Manner Clause is that ‘‘[i]f we are in a qualifications. Indeed, one of the more ano- humor to presume abuses of power, it is as malous consequences of petitioners’ argu- fair to presume them on the part of the State ment is that it accepts federal supremacy governments as on the part of the general over the procedural aspects of determining 19 government’’). the times, places, and manner of elections The Framers’ discussion of the salary of while allowing the States carte blanche with representatives reveals similar concerns. respect to the substantive qualifications for When the issue was first raised, Madison membership in Congress. argued that congressional compensation should be fixed in the Constitution, rather The dissent nevertheless contends that the than left to state legislatures, because other- Framers’ distrust of the States with respect wise ‘‘it would create an improper depen- to elections does not preclude the people of dence.’’ 1 Farrand 216. George Mason the States from adopting eligibility require- agreed, noting S 810that ‘‘the parsimony of the ments to help narrow their own choices. See States might reduce the provision so low that post, at 1895–1896. As the dissent concedes, TTT the question would be not who were most post, at 1898, however, the Framers were fit to be chosen, but who were most willing to unquestionably concerned that the States serve.’’ Ibid. would simply not hold elections for federal When the issue was later reopened, Na- officers, and therefore the Framers gave thaniel Gorham stated that he ‘‘wished not to Congress the power to ‘‘make S 811or alter’’ refer the matter to the State Legislatures state election regulations. Yet under the who were always paring down salaries in dissent’s approach, the States could achieve such a manner as to keep out of offices men exactly the same result by simply setting most capable of executing the functions of qualifications for federal office sufficiently them.’’ Id., at 372. Edmund Randolph high that no one could meet those qualifica- agreed that ‘‘[i]f the States were to pay the tions. In our view, it is inconceivable that members of the Nat[ional] Legislature, a de- the Framers would provide a specific consti- pendence would be created that would vitiate tutional provision to ensure that federal elec- the whole System.’’ Ibid. Rufus King tions would be held while at the same time ‘‘urged the danger of creating a dependence allowing States to render those elections on the States,’’ ibid., and Hamilton noted meaningless by simply ensuring that no can- that ‘‘[t]hose who pay are the masters of didate could be qualified for office. Given those who are paid,’’ id., at 373. The Con- the Framers’ wariness over the potential for vention ultimately agreed to vest in Congress state abuse, we must conclude that the speci- the power to set its own compensation. See fication of fixed qualifications in the constitu- Art. I, § 6.20 tional text was intended to prescribe uniform

19. The dissent attacks our holding today by argu- the people directly through amendment of the ing that the Framers’ distrust of the States ex- state constitution. Indeed, no party has so ar- tended only to measures adopted by ‘‘state legis- gued. Quite simply, in our view, the dissent’s latures,’’ and not to measures adopted by ‘‘the distinction between state legislation passed by people themselves.’’ Post, at 1896. See also the state legislature and legislation passed by post, at 1896 (‘‘These delegates presumably did state constitutional amendment is untenable. not want state legislatures to be able to tell Mem- The qualifications in the Constitution are fixed, bers of Congress from their State’’ how to vote) and may not be altered by either States or their (emphasis added). The novelty and expansive- legislatures. ness of the dissent’s attack is quite astonishing. We are aware of no case that would even suggest 20. The Framers’ decision to reject a proposal that the validity of a state law under the Federal allowing for States to recall their own represen- Constitution would depend at all on whether the tatives, see 1 Farrand 20, 217, reflects these state law was passed by the state legislature or by same concerns. 514 U.S. 812 U.S. TERM LIMITS, INC. v. THORNTON 1859 Cite as 115 S.Ct. 1842 (1995) rules that would preclude modification by cerning rights which depend on state law is either Congress or the States.21 not, however, normally assigned to federal We find further evidence of the Framers’ tribunals. See id., at 636. The Constitu- intent in Art. I, § 5, cl. 1, which provides: tion’s provision for each House to be the ‘‘Each House shall be the Judge of the Elec- judge of its own qualifications thus provides tions, Returns and Qualifications of its own further evidence that the Framers believed Members.’’ That Art. I, § 5, vests a federal that the primary source of those qualifica- tribunal with ultimate authority to judge a tions would be federal law. Member’s qualifications is fully consistent with the understanding that those qualifica- We also find compelling the complete ab- tions are fixed in the Federal Constitution, sence in the ratification debates of any asser- but not with the understanding that they can tion that States had the power to add qualifi- be altered by the States. If the States had cations. In those debates, the question the right to prescribe additional qualifica- whether to require term limits, or ‘‘rotation,’’ was a major source of controversy. The tions—S 812such as property, educational, or professional qualifications—for their own draft of the Constitution that was submitted representatives, state law would provide the for ratification contained no provision for ro- standard for judging a Member’s eligibility. tation.22 In arguments that echo in the As we concluded in Murdock v. Memphis, 20 preamble to Arkansas’ Amendment 73, oppo- Wall. 590, 22 L.Ed. 429 (1875), federal ques- nents of ratification condemned the absence tions are generally answered finally by feder- of a rotation requirement, noting that ‘‘there al tribunals because rights which depend on is no doubt that senators will hold their office federal law ‘‘should be the same everywhere’’ perpetually; and in this situation, they must and ‘‘their construction should be uniform.’’ of necessity lose their dependence, and their Id., at 632. The judging of questions con- attachments to the people.’’ 23 Even propo-

21. The dissent’s arguments concerning these pro- are apt to forget their dependence, lose their visions of the Constitution, see post, at 1896– sympathy, and contract selfish habitsTTTT The 1899, simply reinforce our argument that the senators will associate only with men of their constitutional provisions surrounding elections own class, and thus become strangers to the all reveal the Framers’ basic fear that the States condition of the common people’’); id., at 30–31 might act to undermine the National Legislature. (Mass., Turner) (‘‘Knowing the numerous arts For example, as the dissent concedes, the Fram- that designing men are prone to, to secure their ers feared that States would use the control over election, and perpetuate themselves, it is my salaries to influence the votes of their representa- hearty wish that a rotation may be provided tive. See post, at 1896. Similarly, the dissent for’’); id., at 62 (Mass., Kingsley) (‘‘[W]e are concedes that the Times, Places and Manner deprived of annual elections, have no rotation, Clause reflects the Framers’ fear that States and cannot recall our members; therefore our would not conduct federal elections at all. See federal rulers will be masters, and not servants’’); post, at 1898. We believe that the dissent’s read- Samuel Bryan, ‘‘Centinel I,’’ Independent Gazet- ing of the provisions at issue understates consid- teer (Phil., Oct. 5, 1787), 1 Debate on the Consti- erably the extent of the Framers’ distrust. How- tution 52, 61 (B. Bailyn ed. 1990) (hereinafter ever, even under the dissent’s reading of the Bailyn) (‘‘[A]s there is no exclusion by rotation, provisions, the text of the Constitution unques- [Senators] may be continued for life, which, from tionably reveals the Framers’ distrust of the their extensive means of influence, would follow States regarding elections, and thus provides of course’’); Letter from George Lee Turberville powerful evidence supporting our view that the to Madison (Dec. 11, 1787), 1 Bailyn 477, 479 qualifications established in the Constitution are (‘‘Why was not that truely republican mode of exclusive. forcing the Rulers or sovereigns of the states to mix after stated Periods with the people again— 22. A proposal requiring rotation for Members of observed’’); Mercy Otis Warren, ‘‘A Columbian the House was proposed at the Convention, see 1 Patriot’’ (Boston, Feb. 1788), 2 Bailyn 284, 292 Farrand 20, but was defeated unanimously, see (‘‘There is no provision for a rotation, nor any id., at 217. There is no record of any debate on thing to prevent the perpetuity of office in the either occasion. same hands for lifeTTTT By this neglect we lose the advantages of that check to the overbearing 23. 2 Elliot’s Debates 309–310 (N.Y., Smith). See insolence of office, which by rendering him ineli- also id., at 287–288 (N.Y., G. Livingston) (Sena- gible at certain periods, keeps the mind of man tors will enjoy ‘‘a security of their re-election, as in equilibrio, and teaches him the feelings of the long as they pleaseTTTT In such a situation, men governed’’). 1860 115 SUPREME COURT REPORTER 514 U.S. 812 nents of ratificaStion813 expressed concern that nowhere in the extensive ratification about the ‘‘abandonment in every instance of debates have we found any statement by the necessity of rotation in office.’’ 24 At either a proponent or an opponent of rotation several ratification conventions, participants that the draft constitution would permit proposed amendments that would have re- States to require rotation for the representa- 25 quired rotation. tives of their own citizens. If the partici- The Federalists’ responses to those criti- pants in the debate had believed that the cisms and proposals addressed the merits of States retained the authority to impose term the issue, arguing that rotation was incompa- limits, it is inconceivable that the Federalists tible with the people’s right to choose. As would not have made this obvious response we noted above, Robert Livingston argued: to the arguments of the pro-rotation forces. S 814‘‘The people are the best judges who The absence in an otherwise freewheeling ought to represent them. To dictate and debate of any suggestion that States had the control them, to tell them whom they shall power to impose additional qualifications un- not elect, is to abridge their natural rights. questionably reflects the Framers’ common This rotation is an absurd species of ostra- understanding that States lacked that power. cism.’’ 2 Elliot’s Debates 292–293. Similarly, Hamilton argued that the repre- In short, if it had been assumed that sentatives’ need for reelection rather than States could add additional qualifications, mandatory rotation was the more effective that assumption would have provided the ba- way to keep representatives responsive to sis for a powerful rebuttal to the arguments the people, because ‘‘[w]hen a man knows he being advanced. The failure of intelligent must quit his station, let his merit be what it and experienced advocates to utilize this ar- may, he will turn his attention chiefly to his gument must reflect a general agreeSment815 own emolument.’’ Id., at 320.26 that its premise was unsound, and that the Regardless of which side has the better of power to add qualifications was one that the the debate over rotation, it is most striking Constitution denied the States.27

24. Letter of Dec. 20, 1787, from Thomas Jeffer- 27. Petitioners set forth several other arguments son to James Madison. 1 id., at 209, 211. In to support their contention that the Convention 1814, in another private letter, Jefferson ex- and ratification debates reveal that the qualifica- pressed the opinion that the States had not aban- tions in the Qualifications Clauses were not in- doned the power to impose term limits. See tended to be exclusive. We find none of these Letter of Jan. 31, 1814, to Joseph C. Cabell, in 14 persuasive. Writings of Thomas Jefferson 82 (A. Lipscomb ed. 1904). Though he noted that his reasoning Petitioners first observe that the notes of Ed- on the matter ‘‘appears to me to be sound,’’ he mund Randolph, who was a member of the Com- went on to note: mittee of Detail, reveal that an early draft of the Qualifications Clause provided: ‘‘but, on so recent a change of view, caution ‘‘The qualifications of (a) delegates shall be the requires us not to be too confident, and that we age of twenty-five years at least. and citizenship: admit this to be one of the doubtful questions on (and any person possessing these qualifications which honest men may differ with the purest of may be elected except).’’ 2 Farrand 139 (foot- motives; and the more readily, as we find we note omitted). have differed from ourselves on it.’’ Id., at 83. Petitioners suggest that the deletion of the paren- The text of Jefferson’s response clearly belies the thetical material from the Clause suggests that dissent’s suggestion that Jefferson ‘‘himself did the Framers did not intend the Qualifications not entertain serious doubts of its correctness.’’ Clause to be exclusive. We reject this argument. Post, at 1889, n. 14. First, there is no evidence that the draft in Ran- 25. See n. 40, infra. dolph’s notes was ever presented to the Conven- tion, and thus the deletion of the Clause tells us 26. George Washington made a similar argument: little about the views of the Convention as a ‘‘The power under the Constitution will always whole. Moreover, even assuming that the Con- be in the People. It is entrusted for certain vention had seen the draft, the deletion of the defined purposes, and for a certain limited peri- language without comment is at least as consis- od, to representatives of their own chusing; and tent with a belief—as suggested by Dickinson, see whenever it is executed contrary to their Interest, n. 9, supra—that the language was superfluous as or not agreeable to their wishes, their Servants with a concern that the language was inappropri- can, and undoubtedly will be, recalled.’’ 1 Bai- ate. Finally, contrary to the rather ingenious lyn 305, 306–307. argument advanced in the dissent, see post, at 514 U.S. 817 U.S. TERM LIMITS, INC. v. THORNTON 1861 Cite as 115 S.Ct. 1842 (1995)

S 816Congressional Experience S 817‘‘ ‘The Committee of Elections consid- Congress’ subsequent experience with ered the qualifications of members to have state-imposed qualifications provides further been unalterably determined by the Feder- evidence of the general consensus on the lack al Convention, unless changed by an au- of state power in this area. In Powell, we thority equal to that which framed the examined that experience and noted that Constitution at first; that neither the State during the first 100 years of its existence, nor the Federal Legislatures are vested ‘‘Congress strictly limited its power to judge with authority to add to those qualifica- the qualifications of its members to those tions, so as to change them.’ ’’ Powell, 395 enumerated in the Constitution.’’ 395 U.S., U.S., at 542–543, 89 S.Ct., at 1975, quoting at 542, 89 S.Ct., at 1974. Congress first from 17 Annals of Cong. 872 (1807). confronted the issue in 1807 when it faced a As we noted in Powell, the congressional challenge to the qualifications of William debate over the committee’s recommendation McCreery, a Representative from Maryland tended to focus on the ‘‘narrow issue of the who allegedly did not satisfy a residency power of the States to add to the standing requirement imposed by that State. In rec- qualifications set forth in the Constitution,’’ ommending that McCreery be seated, the 395 U.S., at 543, 89 S.Ct., at 1975. The Report of the House Committee on Elections whole House, however, did not vote on the noted: committee’s Report, and instead voted only ‘‘ ‘The committee proceeded to examine on a simple resolution: ‘‘Resolved, That Wil- the Constitution, with relation to the case liam McCreery is entitled to his seat in this submitted to them, and find that qualifica- House.’’ 17 Annals of Cong. 1238 (1807). tions of members are therein determined, That resolution passed by a vote of 89 to 18. without reserving any authority to the Ibid. State Legislatures to change, add to, or diminish those qualifications; and that, Though the House Debate may be incon- by that instrument, Congress is constitut- clusive, commentators at the time apparently ed the sole judge of the qualifications pre- viewed the seating of McCreery as confirma- scribed by it, and are obliged to decide tion of the States’ lack of power to add agreeably to the Constitutional rulesTTTT’ ’’ qualifications. For example, in a letter to Powell, 395 U.S., at 542, 89 S.Ct., at 1975 Joseph Cabell, Thomas Jefferson noted the quoting 17 Annals of Cong. 871 (1807) (em- argument that ‘‘to add new qualifications to phasis added).28 those of the Constitution would be as much The Chairman of the House Committee on an alteration as to detract from them’’; he Elections elaborated during debate: then added: ‘‘And so I think the House of

1895, it seems to us irrelevant that the draft in Second, of course, the property provision was question did not include a comparable parenthet- deleted, thus providing further evidence that the ical clause referring to ‘‘elected’’ Senators be- Framers wanted to minimize the barriers that cause the draft contemplated that Senators, un- would exclude the most able citizens from ser- like Representatives, would not be chosen by vice in the National Government. popular election. Respondent Republican Party of Arkansas also Nor is there merit to the argument that the argues that the negative phrasing of the Qualifi- inclusion in the Committee’s final draft of a cations Clauses suggests that they were not provision allowing each House to add property meant to be exclusive. Brief for Respondents qualifications, see 2 Farrand 179, is somehow Republican Party of Arkansas et al. 5–6. This inconsistent with our holding today. First, there argument was firmly rejected in Powell, see 395 is no conflict between our holding that the quali- U.S., at 537–539, and n. 73, 89 S.Ct., at 1973, fications for Congress are fixed in the Constitu- and n. 73; see also Warren 422, n. 1, and we see tion and a provision in the Constitution itself no need to revisit it now. providing for property qualifications. Indeed, that is why our analysis is consistent with the 28. We recognize that the ‘‘Committee of Elec- other disqualifications contained in the Constitu- tions were not unanimous in these sentiments,’’ tion itself. See n. 2, supra. The Constitution and that a ‘‘minority advocated the right of the simply prohibits the imposition by either States State Legislature to prescribe additional qualifi- or Congress of additional qualifications that are cations to the members from the respective not contained in the text of the Constitution. States.’’ 17 Annals of Cong. 873 (1807). 1862 115 SUPREME COURT REPORTER 514 U.S. 817

Representatives of Congress decided in some sions. In 1887, for example, the Senate seat- case; I believe that of a member from Balti- ed Charles Faulkner of West Virginia, de- more.’’ Letter of Jan. 31, 1814, to Joseph C. spite the fact that a provision of the West Cabell, in 14 Writings of Thomas Jefferson Virginia Constitution purported to render 82 (A. Lipscomb ed. 1904). him ineligible to serve. The Senate Commit- Similarly, for over 150 years prior to Pow- tee on Privileges and Elections unanimously ell, commentators viewed the seating of concluded that ‘‘no State can prescribe any McCreery as an expression of the view of the qualification to the office of United States House that States could not add to the quali- Senator in addition to those declared in the fications established in the Constitution. Constitution of the United States.’’ S.Rep. Thus, for example, referring to the No. 1, 50th Cong., 1st Sess., 4 (1887). The McCreery debates, one commentator noted, Senate Committee on Rules and Administra- ‘‘By the decision in this case, [and that in tion reached the same conclusion in 1964 another contested election], it seems to have when faced with a challenge to Pierre Salin- been settled that the States have not a right ger, who had S 819been appointed to serve as to require qualifications from members, dif- Senator from California. See S.Rep. No. ferent S 818from, or in addition to, those pre- 1381, 88th Cong., 2d Sess., 5 (‘‘It is well scribed by the constitution.’’ Cases of Con- settled that the qualifications established by tested Elections in Congress 171 (M. Clarke the U.S. Constitution for the office of U.S. & D. Hall eds. 1834) (emphasis in original). Senator are exclusive, and a State cannot, by Other commentators viewed the incident sim- constitutional or statutory provisions, add to ilarly. See, e.g., G. Paschal, The Constitution or enlarge upon those qualifications’’). of the United States 66 (1876) (citing McCreery to support the proposition that We recognize, as we did in Powell, that 29 ‘‘[t]he Constitution having fixed the qualifica- ‘‘congressional practice has been erratic’’ tions of members, no additional qualifica- and that the precedential value of congres- tions can rightfully be required by the sional exclusion cases is ‘‘quite limited.’’ States’’) (emphasis in original); G. McCrary, Powell, 395 U.S., at 545–546, 89 S.Ct., at American Law of Elections § 323 (4th ed. 1976–77. Nevertheless, those incidents lend 1897) (citing McCreery and stating ‘‘A state support to the result we reach today. law requiring that a Representative in Con- Democratic Principles gress shall reside in a particular town and Our conclusion that States lack the power country within the district from which he is to impose qualifications vindicates the same chosen is unconstitutional and void’’); W. ‘‘fundamental principle of our representative Sutherland, Notes on the Constitution of the democracy’’ that we recognized in Powell, United States 40 (1904) (citing McCreery to namely, that ‘‘the people should choose whom support statement that ‘‘[t]his clause fixes they please to govern them.’’ Id., at 547, 89 the qualifications of members so far as state S.Ct., at 1977 (internal quotation marks omit- action is concerned, and no additional qualifi- ted). cations can be required by the state’’); C. Burdick, Law of the American Constitution As we noted earlier, the Powell Court rec- 160 (1922) (citing McCreery to support the ognized that an egalitarian ideal—that elec- proposition that state-imposed ‘‘limitations tion to the National Legislature should be have been held TTT not to be effective’’). open to all people of merit—provided a criti- Finally, it is clear that in Powell we viewed cal foundation for the constitutional struc- the seating of McCreery as the House’s ac- ture. This egalitarian theme echoes knowledgment that the qualifications in the throughout the constitutional debates. In Constitution were fixed. See 395 U.S., at The Federalist No. 57, for example, Madison 542–543, 89 S.Ct., at 1975. wrote: The Senate experience with state-imposed ‘‘Who are to be the objects of popular qualifications further supports our conclu- choice? Every citizen whose merit may

29. See, e.g., Powell, 395 U.S., at 544–546, 89 S.Ct., at 1975–1977 (noting examples). 514 U.S. 821 U.S. TERM LIMITS, INC. v. THORNTON 1863 Cite as 115 S.Ct. 1842 (1995) recommend him to the esteem and confi- [10–12] Finally, state-imposed restric- dence of his country. No qualification of tions, unlike the congressionally imposed re- wealth, of birth, of religious faith, or of strictions at issue in Powell, violate a third civil profession is permitted to fetter the idea central to this basic principle: that the judgment or disappoint the inclination of right to choose S 821representatives belongs the people.’’ The Federalist No. 57, at not to the States, but to the people. From 351. the start, the Framers recognized that the ‘‘great and radical vice’’ of the Articles of Similarly, hoping to persuade voters in Confederation was ‘‘the principle of LEGIS- New York that the Constitution should be LATION for STATES or GOVERNMENTS, ratified, John Stevens, Jr., wrote: S 820‘‘[N]o in their CORPORATE or COLLECTIVE Government, that has ever yet existed in the CAPACITIES, and as contradistinguished world, affords so ample a field, to individuals from the INDIVIDUALS of whom they con- of all ranks, for the display of political talents sist.’’ The Federalist No. 15, at 108 (Hamil- and abilitiesTTTT No man who has real mer- ton). Thus the Framers, in perhaps their it, let his situation be what it will, need most important contribution, conceived of a despair.’’ 1 Bailyn 487, 492. And Timothy Federal Government directly responsible to Pickering noted that, ‘‘while several of the the people, possessed of direct power over state constitutions prescribe certain degrees the people, and chosen directly, not by of property as indispensable qualifications for States, but by the people. See, e.g., supra, offices, this which is proposed for the U.S. at 1854–1855. The Framers implemented throws the door wide open for the entrance this ideal most clearly in the provision, extant of every man who enjoys the confidence of from the beginning of the Republic, that calls his fellow citizens.’’ Letter from T. Picker- for the Members of the House of Represen- ing to C. Tillinghast (Dec. 24, 1787), 1 Bailyn tatives to be ‘‘chosen every second Year by 289, 290 (emphasis in original).30 Additional the People of the several States.’’ Art. I, qualifications pose the same obstacle to open § 2, cl. 1. Following the adoption of the elections whatever their source. The egalita- Seventeenth Amendment in 1913, this ideal rian ideal, so valued by the Framers, is thus was extended to elections for the Senate. compromised to the same degree by addition- The Congress of the United States, there- al qualifications imposed by States as by fore, is not a confederation of nations in those imposed by Congress. which separate sovereigns are represented by appointed delegates, but is instead a body Similarly, we believe that state-imposed composed of representatives of the people. qualifications, as much as congressionally im- As Chief Justice John Marshall observed: posed qualifications, would undermine the ‘‘The government of the Union, then, TTT is, second critical idea recognized in Powell: emphatically, and truly, a government of the that an aspect of sovereignty is the right of people. In form and in substance it ema- the people to vote for whom they wish. nates from them. Its powers are granted by Again, the source of the qualification is of them, and are to be exercised directly on little moment in assessing the qualification’s them, and for their benefit.’’ McCulloch v. restrictive impact. Maryland, 4 Wheat., at 404–405.31 Ours is a

30. See also 2 Farrand 123 (it is ‘‘improper that 142 (‘‘[M]oney is not made a requisite—the any man of merit should be subjected to disabili- places of senators are wisely left open to all ties in a Republic where merit was understood to persons of suitable age and merit’’). form the great title to public trust, honors & rewards’’) (Dickinson); The Federalist No. 36, at 31. Cf. Hawke v. Smith (No. 1), 253 U.S. 221, 226, 217 (‘‘There are strong minds in every walk of 40 S.Ct. 495, 496–497, 64 L.Ed. 871 (1920) (‘‘The life that will rise superior to the disadvantages of Constitution of the United States was ordained situation and will command the tribute due to by the people, and, when duly ratified, it became their merit, not only from the classes to which the Constitution of the people of the United they particularly belong, but from the society in States’’). Compare U.S. Const., Preamble (‘‘We general. The door ought to be equally open to the People’’), with The Articles of Confederation, all’’) (Hamilton); N. Webster, ‘‘A Citizen of reprinted in 2 Bailyn 926 (‘‘we the under signed America,’’ (Phil., Oct. 17, 1787), 1 Bailyn 129, Delegates of the States’’). 1864 115 SUPREME COURT REPORTER 514 U.S. 821

‘‘government of the people, by the people, for Cf. McCulloch v. Maryland, 4 Wheat., at the people.’’ A. Lincoln, Gettysburg Address 428–429 (‘‘Those means are not given by the (1863). people of a particular State, not given by the

S 822The Framers deemed this principle crit- constituents of the legislature, TTT but by the ical when they discussed qualifications. For people of all the States. They are given by example, during the debates on residency all, for the benefit of all—and upon theory, requirements, Morris noted that in the should be subjected to that government only House, ‘‘the people at large, not the States, which belongs to all’’). Such a patchwork are represented.’’ 2 Farrand 217 (emphasis would also sever the direct link that the in original) (footnote omitted). Similarly, Framers found so critical between the Na- George Read noted that the Framers ‘‘were tional Government and the people of the forming a Nati[ona]l Gov[ernmen]t and such United States.32 a regulation would correspond little with the idea that we were one people.’’ Ibid. (em- S State Practice phasis in original). James Wilson ‘‘enforced 823 the same consideration.’’ Ibid. Petitioners attempt to overcome this for- Consistent with these views, the constitu- midable array of evidence against the States’ tional structure provides for a uniform salary power to impose qualifications by arguing to be paid from the national treasury, allows that the practice of the States immediately the States but a limited role in federal elec- after the adoption of the Constitution demon- tions, and maintains strict checks on state strates their understanding that they pos- interference with the federal election pro- sessed such power. One may properly ques- cess. The Constitution also provides that the tion the extent to which the States’ own qualifications of the representatives of each practice is a reliable indicator of the contours State will be judged by the representatives of of restrictions that the Constitution imposed the entire Nation. The Constitution thus on States, especially when no court has ever creates a uniform national body representing upheld a state-imposed qualification of any the interests of a single people. sort. See supra, at 1852–1853. But petition- [13] Permitting individual States to for- ers’ argument is unpersuasive even on its mulate diverse qualifications for their repre- own terms. At the time of the Convention, sentatives would result in a patchwork of ‘‘[a]lmost all the State Constitutions required state qualifications, undermining the unifor- members of their Legislatures to possess mity and the national character that the considerable property.’’ See Warren 416– Framers envisioned and sought to ensure. 417.33 Despite this near uniformity, only one

32. There is little significance to the fact that Nation lack a comparable interest in allowing Amendment 73 was adopted by a popular vote, every State to send mature, loyal, and knowl- rather than as an Act of the state legislature. edgeable representatives to Congress. In our See n. 19, supra. In fact, none of the petitioners view, the interest possessed by the people of the argues that the constitutionality of a state law Nation and identified by the dissent is the same would depend on the method of its adoption. as the people’s interest in making sure that, This is proper, because the voters of Arkansas, in within ‘‘reasonable limitations, the door to this adopting Amendment 73, were acting as citizens part of the federal government is open to merit of of the State of Arkansas, and not as citizens of every description, whether native or adoptive, the National Government. The people of the whether young or old, and without regard to State of Arkansas have no more power than does poverty or wealth, or to any particular profession the Arkansas Legislature to supplement the quali- of religious faith.’’ The Federalist No. 52, at fications for service in Congress. As Chief Jus- 326. tice Marshall emphasized in McCulloch, ‘‘Those means are not given by the people of a particular 33. See, e.g., 7 Federal and State Constitutions, State, not given by the constituents of the legisla- Colonial Charters, and Other Organic Laws of ture, TTT but by the people of all the States.’’ 4 the States, Territories, and Colonies 3816 (F. Wheat., at 428–429. Thorpe ed. 1909) (hereinafter Thorpe) (Virginia) The dissent concedes that the people of the (members of state legislature must be freehold- Nation have an interest in preventing any State ers); 4 id., at 2460, 2461 (New Hampshire) (free- from sending ‘‘immature, disloyal, or unknow- hold estate of 200 pounds for state senators; ledgeable representatives to Congress,’’ post, at estate of 100 pounds, at least half of which is 1886, but does not explain why the people of the freehold, for state representatives); 3 id., at 514 U.S. 825 U.S. TERM LIMITS, INC. v. THORNTON 1865 Cite as 115 S.Ct. 1842 (1995)

S 824State, Virginia, placed similar restrictions tained property qualifications for its own on Members of Congress, requiring that a S 825state elected officials yet placed no prop- representative be, inter alia, a ‘‘freeholder.’’ erty qualification on its congressional repre- See 1788 Va.Acts, ch. 2, § 2.34 Just 15 years sentatives.35 after imposing a property qualification, Virgi- nia replaced that requirement with a provi- The contemporaneous state practice with sion requiring that representatives be only respect to term limits is similar. At the time ‘‘qualified according to the constitution of the of the Convention, States widely supported United States.’’ 1813 Va.Acts, ch. 23, § 2. term limits in at least some circumstances. Moreover, several States, including New The Articles of Confederation contained a Hampshire, Georgia, Delaware, and South provision for term limits.36 As we have not- Carolina, revised their Constitutions at ed, some members of the Convention had around the time of the Federal Constitution. sought to impose term limits for Members of In the revised Constitutions, each State re- Congress.37 In addition, many States im-

1691, 1694 (Maryland) (real and personal prop- olina) (500 acres and 10 slaves or 150 pounds erty of over 500 pounds for House of Delegates; sterling for House; 300 pounds sterling for Sen- real and personal property of 1,000 pounds for ate); 1 id., at 570, 571 (Delaware) (freehold for Senate); id., at 1897, 1898 (freehold estate of House; freehold estate of 200 acres or real and 300 pounds or personal estate of 600 pounds for personal property of 1,000 pounds for Senate). state senators; freehold estate of 100 pounds or Pennsylvania amended its Constitution in 1790. ratable estate of 200 pounds for state representa- Neither the old constitution nor the amended one tives); 1 id., at 562 (Delaware) (state legislators contained property qualifications for state repre- must be freeholders); 5 id., at 2595 (New Jersey) sentatives. See 5 id., at 3084; id., at 3092–3093. (members of Legislative Council must be free- holders and must have real and personal proper- Several State Constitutions also imposed reli- ty of 1,000 pounds; members of Assembly must gious qualifications on state representatives. For have real and personal property of 500 pounds); example, New Hampshire’s Constitution of 1784 id., at 2631 (New York) (state senators must be and its Constitution of 1792 provided that mem- freeholders); id., at 2790 (North Carolina) (100 bers of the State Senate and House of Represen- acres of land for House; 300 acres of land in tatives be ‘‘of the protestant religion.’’ 4 id., at Senate); 2 id., at 779 (Georgia) (150 acres of 2460, 2461–2462 (1784 Constitution); id., at land or property of 250 pounds); 6 id., at 3251 2477, 2479 (1792 Constitution). North Car- (South Carolina) (freehold estate of 2,000 pounds olina’s Constitution provided that ‘‘no clergy- for state senate). man, or preacher of the gospel, of any denomina- tion, shall be capable of being a member of 34. Judge Tucker expressed doubt about the con- either the Senate, House of Commons, or Coun- stitutionality of the provisions of the Virginia cil of State,’’ 5 id., at 2793, and that ‘‘no person, statute, noting that ‘‘these provisions, as they who shall deny the being of God or the truth of require qualifications which the constitution does the Protestant religion TTT shall be capable of not, may possibly be found to be nugatory.’’ 1 holding any office or place of trust or profit in W. Blackstone, Commentaries Appendix 213 (S. the civil department within this State,’’ ibid. Tucker ed. 1803). Judge Tucker noted the two Georgia and South Carolina also had religious primary arguments against the power to add qualifications in their Constitutions for state leg- such a qualification: islators, see 2 id., at 779 (Georgia) (‘‘of the Prot- estant religion’’); 6 id., at 3252 (South Carolina) ‘‘First, that in a representative government, the (must be ‘‘of the Protestant religion’’), but delet- people have an undoubted right to judge for ed those provisions when they amended their themselves of the qualification of their delegate, Constitutions, in 1789, see 2 id., at 785, and in and if their opinion of the integrity of their 1790, see 6 id., at 3258, respectively. Article VI representative will supply the want of estate, of the Federal Constitution, however, prohibited there can be no reason for the government to States from imposing similar qualifications on interfere, by saying, that the latter must and shall federal legislators. overbalance the former. ‘‘Secondly; by requiring a qualification in es- tate it may often happen, that men the best 36. See 2 Bailyn 926, 927 (‘‘[N]o person shall be qualified in other respects might be incapacitated capable of being a delegate for more than three from serving their country.’’ Ibid. years in any term of six years’’).

35. See 4 Thorpe 2477, 2479 (New Hampshire) 37. See 1 Farrand 20 (‘‘Res[olved] that the mem- (100 pounds for House; 200 pounds for Senate); bers of the first branch of the National Legisla- 2 id., at 786 (Georgia) (200 acres of land or 150 ture ought TTT to be incapable of reelection for pounds for House; 250 acres of land or 250 the space of [blank] after the expiration of their pounds for Senate); 6 id., at 3259 (South Car- term of service’’). See also n. 22, supra. 1866 115 SUPREME COURT REPORTER 514 U.S. 825

38 posed term limits on S 826state officers, four S 827In sum, the available historical and tex- placed limits on delegates to the Continental tual evidence, read in light of the basic prin- Congress,39 and several States voiced sup- ciples of democracy underlying the Constitu- port for term limits for Members of Con- tion and recognized by this Court in Powell, gress.40 Despite this widespread support, no reveal the Framers’ intent that neither Con- State sought to impose any term limits on its gress nor the States should possess the pow- own federal representatives. Thus, a proper er to supplement the exclusive qualifications assessment of contemporaneous state prac- set forth in the text of the Constitution. tice provides further persuasive evidence of a general understanding that the qualifications S 828IV in the Constitution were unalterable by the Petitioners argue that, even if States may States.41 not add qualifications, Amendment 73 is con-

38. See, e.g., G. Wood, Creation of the American seems to us that States may simply have viewed Republic, 1776–1787, p. 140 (1969) (noting that district residency requirements as the necessary 7 of the 10 State Constitutions drafted in 1776– analog to state residency requirements. Thus, 1777 provided for term limits on their state exec- state practice with respect to residency require- utives); see also App. to Brief for State Petitioner ments does not necessarily indicate that States 1b–34b (describing provisions of State Constitu- believed that they had a broad power to add tions). restrictions. Finally, we consider the number of 39. 3 Thorpe 1695–1697 (Maryland); 4 id., at state-imposed qualifications to be remarkably 2467 (New Hampshire); 5 id., at 3085 (Pennsyl- small. Despite the array of property, religious, vania); 5 id., at 2793 (North Carolina). and other qualifications that were contained in state constitutions, petitioners and the dissent 40. New York attached to its ratification a list of can point to only one instance of a state-imposed proposed amendments and ‘‘enjoin[ed] it upon property qualification on candidates for Con- their representatives in Congress to exert all their gress, and five instances of district residency influence, and use all reasonable means, to ob- requirements. The state practice seems to us tain a ratification.’’ 1 Elliot’s Debates 329. One notable for its restraint, and thus supports the of the proposed amendments was ‘‘That no per- conclusion that States did not believe that they son be eligible as a senator for more than six generally had the power to add qualifications. years in any term of twelve years.’’ Id., at 330. In Virginia, the Convention similarly ‘‘enjoin[ed] Nor are we persuaded by the more recent state it upon their representatives,’’ 2 Bailyn 564, to practice involving qualifications such as those adopt ‘‘a Declaration or Bill of Rights,’’ id., at that bar felons from being elected. As we have 558, which would include the statement that noted, the practice of States is a poor indicator members of the Executive and Legislative of the effect of restraints on the States, and no Branches ‘‘should, at fixed periods be reduced to court has ever upheld one of these restrictions. a private station, return into the mass of the Moreover, as one moves away from 1789, it people; and the vacancies be supplied by certain seems to us that state practice is even less indica- and regular elections; in which all or any part of tive of the Framers’ understanding of state pow- the former members to be eligible or ineligible, er. as the rules of the Constitution of Government, Finally, it is important to reemphasize that the and the laws shall direct,’’ id., at 559. The North dissent simply has no credible explanation as to Carolina Convention proposed nearly identical why almost every State imposed property qualifi- language, see id., at 566, though that Convention cations on state representatives but not on feder- ultimately did not ratify the Constitution, see 4 al representatives. The dissent relies first on the Elliot’s Debates 250–251. Thus, at least three obvious but seemingly irrelevant proposition that States proposed some form of constitutional the state legislatures were larger than state con- amendment supporting term limits for Members gressional delegations. Post, at 1907, n. 37. If of Congress. anything, the smaller size of the congressional 41. Petitioners and the dissent also point out that delegation would have made States more likely to Georgia, Maryland, Massachusetts, Virginia, and put qualifications on federal representatives North Carolina added district residency require- since the election of any ‘‘pauper’’ would have ments, and petitioners note that New Jersey and had proportionally greater significance. The dis- Connecticut established nominating processes for sent also suggests that States failed to add quali- congressional candidates. They rely on these fications out of fear that others, e.g., Congress, facts to show that the States believed they had believed that States lacked the power to add such the power to add qualifications. We again are qualifications. Of course, this rationale is per- unpersuaded. First, establishing a nominating fectly consistent with our view that the general process is no more setting a qualification for understanding at the time was that States lacked office than is creating a primary. Second, it the power to add qualifications. 514 U.S. 830 U.S. TERM LIMITS, INC. v. THORNTON 1867 Cite as 115 S.Ct. 1842 (1995) stitutional because it is not such a qualifica- Representative than the requirement that tion, and because Amendment 73 is a permis- the candidate win the primary to secure a sible exercise of state power to regulate the place on the general ballot or otherwise dem- ‘‘Times, Places and Manner of holding Elec- onstrate substantial community support.’’ tions.’’ We reject these contentions. Ibid. See also Joyner v. Mofford, 706 F.2d, Unlike §§ 1 and 2 of Amendment 73, which at 1531; Hopfmann v. Connolly, 746 F.2d 97, create absolute bars to service for long-term 103 (CA1 1984), vacated in part on other incumbents running for state office, § 3 grounds, 471 U.S. 459, 105 S.Ct. 2106, 85 merely provides that certain Senators and L.Ed.2d 469 (1985). Petitioners maintain Representatives shall not be certified as can- that, under Storer, Amendment 73 is not a didates and shall not have their names ap- qualification. pear on the ballot. They may run as write-in candidates and, if elected, they may serve. [14] We need not decide whether peti- Petitioners contend that only a legal bar to tioners’ narrow understanding of qualifica- service creates an impermissible qualifica- tions is correct because, even if it is, Amend- tion, and that Amendment 73 is therefore ment 73 may not stand. As we have often consistent with the Constitution. noted, ‘‘ ‘[c]onstitutional rights would be of little value if they could be TTT indirectly Petitioners support their restrictive defini- denied.’ ’’ Harman v. Forssenius, 380 U.S. tion of qualifications with language from 528, 540, 85 S.Ct. 1177, 1185, 14 L.Ed.2d 50 Storer v. Brown, 415 U.S. 724, 94 S.Ct. 1274, (1965), quoting Smith v. Allwright, 321 U.S. 39 L.Ed.2d 714 (1974), in which we faced a 649, 664, 64 S.Ct. 757, 765, 88 L.Ed. 987 constitutional challenge to provisions of the (1944). The Constitution ‘‘nullifies sophisti- California Elections Code that regulated the cated as well as simple-minded modes’’ of procedures by which both independent candi- infringing on constitutional protections. dates and candidates affiliated with qualified Lane v. Wilson, 307 U.S. 268, 275, 59 S.Ct. political parties could obtain ballot position in 872, 876, 83 L.Ed. 1281 (1939); Harman v. general elections. The code required candi- Forssenius, 380 U.S., at 540–541, 85 S.Ct., at dates affiliated with a qualified party to win a 1185. primary election, and required independents to make timely filing of nomination papers [15] In our view, Amendment 73 is an signed by at least 5% of the entire vote cast indirect attempt to accomplish what the Con- in the last general election. The code also stitution prohibits Arkansas from accomplish- denied ballot position to independents who ing directly. As the plurality opinion of the had voted in the most recent primary elec- Arkansas Supreme Court recognized, tion or who had registered their affiliation Amendment 73 is an ‘‘effort to dress eligibili- with a qualified party during the previous ty to stand for Congress in ballot access year. clothing,’’ because the ‘‘intent and the effect In Storer, we rejected the argument that of Amendment 73 are to disqualify congres- the challenged procedures created additional sional incumbents from further service.’’ 316 qualifications as ‘‘wholly without merit.’’ Id., Ark., at 266, 872 S.W.2d, at 357.42 We must, at 746, n. 16, 94 S.Ct., at 1287, n. 16. We of course, accept the state court’s view of the noted that petitioners ‘‘would not have been purpose of its own law: We are thus authori- disqualified had they been nominated at a tatively informed that the sole purpose of § 3 party primary or by an adequately supported of Amendment 73 was to attempt to achieve independent petition and then elected at the a result that is forbidden by the Federal general election.’’ Ibid. S 829We concluded Constitution. InSdeed,830 it cannot be serious- that the California Code ‘‘no more establishes ly contended that the intent behind Amend- an additional requirement for the office of ment 73 is other than to prevent the election

42. Justice Dudley noted in his concurrence: ‘‘I the members of the Congress.’’ 316 Ark., at 276, am reassured by the style of this case, U.S. Term 872 S.W.2d, at 364 (opinion concurring in part Limits, Inc. That name implies just what this and dissenting in part). amendment is: A practical limit on the terms of 1868 115 SUPREME COURT REPORTER 514 U.S. 830 of incumbents. The preamble of Amend- pose and obvious effect of evading the re- ment 73 states explicitly: ‘‘[T]he people of quirements of the Qualifications Clauses by Arkansas TTT herein limit the terms of elect- handicapping a class of candidates cannot ed officials.’’ Sections 1 and 2 create abso- stand. To argue otherwise is to suggest that lute limits on the number of terms that may the Framers spent significant time and ener- be served. There is no hint that § 3 was gy in debating and crafting Clauses that intended to have any other purpose. could be easily evaded. More importantly, Petitioners do, however, contest the Ar- allowing States to evade the Qualifications kansas Supreme Court’s conclusion that the Clauses by ‘‘dress[ing] eligibility to stand for amendment has the same practical effect as Congress in ballot access clothing’’ trivializes an absolute bar. They argue that the possi- the basic principles of our democracy that bility of a write-in campaign creates a real underlie those Clauses. Petitioners’ argu- possibility for victory, especially for an en- ment treats the Qualifications Clauses not as trenched incumbent. One may reasonably the embodiment of a grand principle, but question the merits of that contention.43 In- rather as empty formalism. ‘‘ ‘It is incon- deed, we are advised by the state court that ceivable that guaranties embedded in the there is nothing more than a faint glimmer of Constitution of the United States may thus possibility that the excluded candidate will be manipulated out of existence.’ ’’ Gomil- 44 win. Our prior cases, too, have suggested lion v. Lightfoot, 364 U.S. 339, 345, 81 S.Ct. that S 831write-in candidates have only a slight 125, 129, 5 L.Ed.2d 110 (1960), quoting Frost 45 chance of victory. But even if petitioners & Frost Trucking Co. v. Railroad Comm’n of are correct that incumbents may occasionally Cal., 271 U.S. 583, 594, 46 S.Ct. 605, 607, 70 win reelection as write-in candidates, there is L.Ed. 1101 (1926). no denying that the ballot restrictions will make it significantly more difficult for the S 832Petitioners make the related argument barred candidate to win the election. In our that Amendment 73 merely regulates the view, an amendment with the avowed pur- ‘‘Manner’’ of elections, and that the amend-

43. The uncontested data submitted to the Arkan- court’s finding on this point. See also infra, at sas Supreme Court indicate that, in over 1,300 1871. Senate elections since the passage of the Seven- teenth Amendment in 1913, only 1 has been won 45. We noted in Lubin v. Panish, 415 U.S. 709, by a write-in candidate. In over 20,000 House 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974), that ‘‘[t]he elections since the turn of the century, only 5 realities of the electoral process TTT strongly have been won by write-in candidates. App. suggest that ‘access’ via write-in votes falls far 201–202. Indeed, it is for this reason that the short of access in terms of having the name of Arkansas Supreme Court found the possibility of the candidate on the ballot.’’ Id., at 719, n. 5, a write-in victory to be a mere ‘‘glimme[r] of 94 S.Ct., at 1321, n. 5; see also Anderson v. Ce- opportunity for those disqualified.’’ 316 Ark., at lebrezze, 460 U.S. 780, 799, n. 26, 103 S.Ct. 266, 872 S.W.2d, at 357; see also id., at 276, 872 1564, 1575, n. 26, 75 L.Ed.2d 547 (1983) (‘‘We S.W.2d, at 364 (Dudley, J., concurring in part have previously noted that [a write-in] opportu- and dissenting in part) (‘‘as a practical matter, nity is not an adequate substitute for having the the amendment would place term limits on ser- candidates name appear on the printed ballot’’); vice in the Congress’’). United States v. Classic, 313 U.S. 299, 313, 61 S.Ct. 1031, 1036–37, 85 L.Ed. 1368 (1941) (‘‘Even if TTT voters may lawfully write into their 44. Contrary to the dissent, post, at 1910, we read ballots, cast at the general election, the name of a majority of the Arkansas Supreme Court as a candidate rejected at the primary and have holding that Amendment 73 has the same prac- their ballots counted, the practical operation of tical effect as an absolute bar. See 316 Ark., at the primary law TTT is such as to impose serious 266, 872 S.W.2d, at 357 (plurality opinion) (the restrictions upon the choice of candidates by the ‘‘intent and the effect of Amendment 73 are to voters’’); Burdick v. Takushi, 504 U.S. 428, 437, disqualify congressional incumbents from further n. 7, 112 S.Ct. 2059, 2065, n. 7, 119 L.Ed.2d service’’); id., at 276, 872 S.W.2d, at 364 (Dud- 245 (1992) (‘‘If the dissent were correct in sug- ley, J., concurring in part and dissenting in part) gesting that requiring primary voters to select a (‘‘That name implies just what this amendment specific ballot impermissibly burdened the right is: A practical limit on the terms of the members to vote, it is clear under our decisions that the of the Congress’’). However, as we note in the availability of a write-in option would not pro- text, infra, at 1868, we do not rely on the state vide an adequate remedy’’). 514 U.S. 834 U.S. TERM LIMITS, INC. v. THORNTON 1869 Cite as 115 S.Ct. 1842 (1995) ment is therefore a permissible exercise of or vivˆa voce, should assemble at this place or state power under Article I, § 4, cl. 1 (the that place; should be divided into districts or Elections Clause), to regulate the ‘‘Times, all meet at one place, sh[oul]d all vote for all Places and Manner’’ of elections.46 We can- the representatives; or all in a district vote not agree. for a number allotted to the district.’’ 2 Farrand 240. Similarly, during the ratifica- A necessary consequence of petitioners’ ar- tion debates, proponents of the Constitution gument is that Congress itself would have noted: ‘‘[T]he power over the manner only the power to ‘‘make or alter’’ a measure such enables them to determine how these as Amendment 73. Art. I, § 4, cl. 1. See electors shall elect—whether by ballot, or by Smiley v. Holm, 285 U.S. 355, 366–367, 52 vote, or by any other way.’’ 4 Elliot’s De- S.Ct. 397, 399, 76 L.Ed. 795 (1932) (‘‘[T]he bates 71 (Steele statement at North Carolina Congress may supplement these state regu- ratifying convention) (emphasis in original).47 lations or may substitute its own’’). That the Framers would have approved of such a re- Hamilton made a similar point in The Fed- sult is unfathomable. As our decision in eralist No. 60, in which he defended the Powell and our discussion above make clear, Constitution’s grant to Congress of the pow- the Framers were particularly concerned er to override state regulations. Hamilton that a grant to Congress of the authority to expressly distinguished the broad power to set its own qualifications would lead inevita- set qualifications from the limited authority bly to congressional self-aggrandizement and under the Elections Clause, noting that the upsetting of the delicate constitutional ‘‘there is no method of securing to the rich balance. See supra, at 1848–1849, and n. 10, the preference apprehended but by pre- supra. Petitioners would have us believe, scribing qualifications of property either however, that even as the Framers carefully for those who may elect or be elected. circumscribed congressional power to set But this forms no part of the power to be qualifications, they intended to allow Con- conferred upon the national government. gress to achieve the same result by simply Its authority would be expressly restricted formulating the regulation as a ballot access to the regulation of the times, the places, restriction under the Elections Clause. We and the manner of elections.’’ The Feder- refuse to adopt an interpretation of the Elec- alist No. 60, at 371 (emphasis in original). tions Clause that would so cavalierly disre- gard what the Framers intended to be a As Hamilton’s statement suggests, the Fram- fundamental constitutional safeguard. ers understood the Elections Clause as a grant of authority to issue procedural regula- Moreover, petitioners’ broad construction tions, and not as a source of power to dictate of the Elections Clause is fundamentally in- S electoral outcomes, to favor or disfavor a consistent with the Framers’ view of that 834 class of candidates, or to evade important Clause. The Framers intended the Elections constitutional restraints. Clause to grant States authority to create procedural regulations, not to provide States Our cases interpreting state power under with license to exclude classes of can- the Elections Clause reflect the same under- diSdates833 from federal office. During the standing. The Elections Clause gives States Convention debates, for example, Madison authority ‘‘to enact the numerous require- illustrated the procedural focus of the Elec- ments as to procedure and safeguards which tions Clause by noting that it covered experience shows are necessary in order to ‘‘[w]hether the electors should vote by ballot enforce the fundamental right involved.’’

46. Article I, § 4, cl. 1, provides: 47. See also ‘‘The Republican,’’ Connecticut ‘‘The Times, Places and Manner of holding Courant (Hartford, Jan. 7, 1788), 1 Bailyn 710, Elections for Senators and Representatives, shall 713 (‘‘The constitution expressly provides that be prescribed in each State by the Legislature the choice shall be by the people, which cuts off thereof; but the Congress may at any time by both from the general and state Legislatures the Law make or alter such Regulations, except as to power of so regulating the mode of election, as to the Places of chusing Senators.’’ deprive the people of a fair choice’’). 1870 115 SUPREME COURT REPORTER 514 U.S. 834

Smiley v. Holm, 285 U.S., at 366, 52 S.Ct., at at 2063, and in ‘‘guard[ing] against irregulari- 399. However, ‘‘[t]he power to regulate the ty and error in the tabulation of votes,’’ time, place, and manner of elections does not Roudebush v. Hartke, 405 U.S. 15, 25, 92 justify, without more, the abridgment of fun- S.Ct. 804, 810, 31 L.Ed.2d 1 (1972). In short, damental rights.’’ Tashjian v. Republican we have approved of state regulations de-

Party of Conn., 479 U.S. 208, 217, 107 S.Ct. signed to ensure that S 835elections are ‘‘ ‘fair 544, 550, 93 L.Ed.2d 514 (1986). States are and honest and TTT [that] some sort of order, thus entitled to adopt ‘‘generally applicable rather than chaos, TTT accompan[ies] the and evenhanded restrictions that protect the democratic processes.’ ’’ Burdick v. Taku- integrity and reliability of the electoral pro- shi, 504 U.S., at 433, 112 S.Ct., at 2063, cess itself.’’ Anderson v. Celebrezze, 460 quoting Storer, 415 U.S., at 730, 94 S.Ct., at U.S. 780, 788, n. 9, 103 S.Ct. 1564, 1570, n. 9, 1279. 75 L.Ed.2d 547 (1983). For example, in Stor- The provisions at issue in Storer and our er v. Brown, 415 U.S. 724, 94 S.Ct. 1274, 39 other Elections Clause cases were thus con- L.Ed.2d 714 (1974), the case on which peti- stitutional because they regulated election tioners place principal reliance, we upheld procedures and did not even arguably impose the validity of certain provisions of the Cali- any substantive qualification rendering a fornia Elections Code. In so doing, we em- class of potential candidates ineligible for phasized the States’ interest in having order- ballot position. They served the state inter- ly, fair, and honest elections ‘‘rather than est in protecting the integrity and regularity chaos.’’ Id., at 730, 94 S.Ct., at 1279. We of the election process, an interest indepen- also recognized the ‘‘States’ strong interest in dent of any attempt to evade the constitu- maintaining the integrity of the political pro- tional prohibition against the imposition of cess by preventing interparty raiding,’’ id., at additional qualifications for service in Con- 731, 94 S.Ct., at 1279, and explained that the gress. And they did not involve measures specific requirements applicable to indepen- that exclude candidates from the ballot with- dents were ‘‘expressive of a general state out reference to the candidates’ support in policy aimed at maintaining the integrity of the electoral process. Our cases upholding the various routes to the ballot,’’ id., at 733, state regulations of election procedures thus 94 S.Ct., at 1281. In other cases, we have provide little support for the contention that approved the States’ interests in avoiding a state-imposed ballot access restriction is ‘‘voter confusion, ballot overcrowding, or the constitutional when it is undertaken for the presence of frivolous candidacies,’’ Munro v. twin goals of disadvantaging a particular Socialist Workers Party, 479 U.S. 189, 194– class of candidates and evading the dictates 195, 107 S.Ct. 533, 537, 93 L.Ed.2d 499 of the Qualifications Clauses.48 (1986), in ‘‘seeking to assure that elections are operated equitably and efficiently,’’ Bur- S 836We do not understand the dissent to dick v. Takushi, 504 U.S., at 433, 112 S.Ct., contest our primary thesis, namely, that if

48. Nor does Clements v. Fashing, 457 U.S. 957, on the public generally’’). As the Ninth Circuit 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982), support recognized in upholding a similar resign-to-run petitioners. In Clements, the Court rejected First statute from Arizona: ‘‘The burden on candidacy and Fourteenth Amendment challenges to Texas’ TTT is indirect and attributable to a desire to so-called ‘‘resign-to-run’’ provision. That provi- regulate state officeholders and not to impose sion treated an elected state official’s declaration additional qualifications to serving in Congress.’’ of candidacy for another elected office as an Joyner v. Mofford, 706 F.2d 1523, 1528 (1983); automatic resignation from the office then held. see also Signorelli v. Evans, 637 F.2d 853, 859 We noted that the regulation was a permissible (CA2 1980) (‘‘New York’s purpose is to regulate attempt to regulate state officeholders. See id., at 972, 102 S.Ct., at 2848 (‘‘Appellees are elected the judicial office that [the candidate] holds, not state officeholders who contest restrictions on the Congressional office he seeks’’). Moreover, partisan political activity’’) (emphasis deleted); as now-Chief Judge Newman observed while up- id., at 974, n. 1, 102 S.Ct., at 2849, n. 1 (STE- holding similar restrictions imposed by New VENS, J., concurring in part and concurring in York, such provisions ‘‘plac[e] no obstacle be- judgment) (‘‘The fact that appellees hold state tween [a candidate] and the ballot or his nomina- office is sufficient to justify a restriction on their tion or his election. He is free to run and the ability to run for other office that is not imposed people are free to choose him.’’ Id., at 858. 514 U.S. 838 U.S. TERM LIMITS, INC. v. THORNTON 1871 Cite as 115 S.Ct. 1842 (1995) the qualifications for Congress are fixed in of ratification largely retain their force today. the Constitution, then a state-passed mea- Over half the States have adopted measures sure with the avowed purpose of imposing that impose such limits on some offices either indirectly such an additional qualification vio- directly or indirectly, and the Nation as a lates the Constitution. The dissent, instead, whole, notably by constitutional amendment, raises two objections, challenging the asser- has imposed a limit on the number of terms tion that the Arkansas amendment has the that the President may serve.49 Term limits, likely effect of creating a qualification, post, like any other qualification for office, unques- at 1909–1910, and suggesting that the true tionably restrict the ability of voters to vote intent of Amendment 73 was not to evade the for whom they wish. On the other hand, Qualifications Clauses but rather to simply such limits may provide for the infusion of ‘‘level the playing field,’’ post, at 1911. Nei- fresh ideas and new perspectives, and may ther of these objections has merit. decrease the likelihood that representatives will lose touch with their constituents. It is [16] As to the first, it is simply irrelevant not our province to resolve this longstanding to our holding today. As we note above in n. debate. 45, our prior cases strongly suggest that write-in candidates will have only a slim We are, however, firmly convinced that chance of success, and the Arkansas plurality allowing the several States to adopt term agreed. However, we expressly do not rest limits for congressional service would effect a on this Court’s prior observations regarding fundamental change in the constitutional write-in candidates. Instead, we hold that a framework. Any such change must come not state amendment is unconstitutional when it by legislation adopted either by Congress or has the likely effect of handicapping a class by an individual State, but rather—as have of candidates and has the sole purpose of other important changes in the electoral pro- creating additional qualifications indirectly. cess 50—through the amendment procedures Thus, the dissent’s discussion of the evidence set forth in Article V. The Framers decided concerning the possibility that a popular in- that the qualifications for service in the Con- cumbent will win a write-in election is simply gress of the United States be fixed in the beside the point. Constitution and be uniform throughout the Nation. That decision reflects the Framers’ As to the second argument, we find wholly understanding that Members of Congress unpersuasive the dissent’s suggestion that are chosen by separate constituencies, but Amendment 73 was designed merely to ‘‘level that S they become, when elected, servants the playing field.’’ As we have noted, supra, 838 of the people of the United States. They are at 1867–1868, it is obvious that the sole pur- not merely delegates appointed by separate, pose of Amendment 73 was to limit the terms sovereign States; they occupy offices that of elected officials, both state and federal, are integral and essential components of a and that Amendment 73, therefore, may not single National Government. In the absence stand. of a properly passed constitutional amend- ment, allowing individual States to craft their S V 837 own qualifications for Congress would thus The merits of term limits, or ‘‘rotation,’’ erode the structure envisioned by the Fram- have been the subject of debate since the ers, a structure that was designed, in the formation of our Constitution, when the words of the Preamble to our Constitution, to Framers unanimously rejected a proposal to form a ‘‘more perfect Union.’’ add such limits to the Constitution. The cogent arguments on both sides of the ques- The judgment is affirmed. tion that were articulated during the process It is so ordered.

49. See U.S. Const., Amdt. 22 (1951) (limiting to women); Amdt. 22 (1951) (Presidential term Presidents to two 4–year terms). limits); Amdt. 24 (1964) (prohibition against poll taxes); Amdt. 26 (1971) (lowering age of voter 50. See, e.g., Amdt. 17 (1913) (direct elections of eligibility to 18). Senators); Amdt. 19 (1920) (extending suffrage 1872 115 SUPREME COURT REPORTER 514 U.S. 838

Justice KENNEDY, concurring. political existenceTTTT’’ The Federalist I join the opinion of the Court. No. 2, pp. 38–39 (C. Rossiter ed. 1961) (hereinafter The Federalist). The majority and dissenting opinions dem- Once the National Government was formed onstrate the intricacy of the question wheth- under our Constitution, the same republican er or not the Qualifications Clauses are ex- principles continued to guide its operation clusive. In my view, however, it is well and practice. As James Madison explained, settled that the whole people of the United the House of Representatives ‘‘derive[s] its States asserted their political identity and powers from the people of America,’’ and unity of purpose when they created the fed- ‘‘the operation of the government on the eral system. The dissent’s course of reason- people in their individual capacities’’ makes it ing suggesting otherwise might be construed ‘‘a national government,’’ not merely a feder- to disparage the republican character of the al one. Id., No. 39, at 244, 245 (emphasis National Government, and it seems appropri- deleted). The Court confirmed this principle ate to add these few remarks to explain why in McCulloch v. Maryland, 4 Wheat. 316, that course of argumentation runs counter to 404–405, 4 L.Ed. 579 (1819), when it said: fundamental principles of federalism. ‘‘The government of the Union, then, TTT is, Federalism was our Nation’s own discov- emphatically, and truly, a government of the ery. The Framers split the atom of sover- people. In form and in substance it ema- eignty. It was the genius of their idea that nates from them. Its powers are granted by our citizens would have two political capaci- them, and are to be exercised directly on ties, one state and one federal, each pro- them, and for their benefit.’’ The same theo- tected from incursion by the other. The re- ry led us to observe as follows in Ex parte sulting Constitution created a legal system Yarbrough, 110 U.S. 651, 666, 4 S.Ct. 152, unprecedented in form and design, estab- 159, 28 L.Ed. 274 (1884): ‘‘In a republican lishing two orders of government, each with government, like ours, TTT political S 840power its own direct relationship, its own privity, is reposed in representatives of the entire its own set of mutual rights and obligations body of the people.’’ to the people who sustain it and are gov- In one sense it is true that ‘‘the people of erned by it. It is appropriate to recall each State retained their separate political these origins, which instruct us as to the identities,’’ post, at 1877, for the Constitution S nature of the two different governments 839 takes care both to preserve the States and to created and confirmed by the Constitution. make use of their identities and structures at A distinctive character of the National various points in organizing the federal un- Government, the mark of its legitimacy, is ion. It does not at all follow from this that that it owes its existence to the act of the the sole political identity of an American is whole people who created it. It must be with the State of his or her residence. It remembered that the National Government, denies the dual character of the Federal too, is republican in essence and in theory. Government which is its very foundation to John Jay insisted on this point early in The assert that the people of the United States Federalist Papers, in his comments on the do not have a political identity as well, one government that preceded the one formed by independent of, though consistent with, their the Constitution. identity as citizens of the State of their resi- ‘‘To all general purposes we have uniform- dence. Cf. post, at 1876–1877. It must be ly been one people; each individual citizen recognized that ‘‘ ‘[f]or all the great purposes everywhere enjoying the same national for which the Federal government was rights, privileges, and protectionTTTT formed, we are one people, with one common ‘‘A strong sense of the value and bless- country.’ ’’ Shapiro v. Thompson, 394 U.S. ings of union induced the people, at a very 618, 630, 89 S.Ct. 1322, 1329, 22 L.Ed.2d 600 early period, to institute a federal govern- (1969) (quoting Passenger Cases, 7 How. 283, ment to preserve and perpetuate it. They 492, 12 L.Ed. 702 (1849) (Taney, C.J., dis- formed it almost as soon as they had a senting); see Crandall v. Nevada, 6 Wall. 35, 514 U.S. 842 U.S. TERM LIMITS, INC. v. THORNTON 1873 Cite as 115 S.Ct. 1842 (1995) 43, 18 L.Ed. 745 (1868) (‘‘The people of these Federal Government must be held within the United States constitute one nation’’ and boundaries of its own power when it intrudes ‘‘have a government in which all of them are upon matters reserved to the States. See deeply interested’’). United States v. Lopez, 514 U.S. 549, 115 It might be objected that because the S.Ct. 1624, 131 L.Ed.2d 626 (1995). States ratified the Constitution, the people Of course, because the Framers recognized can delegate power only through the States that state power and identity were essential or by acting in their capacities as citizens of parts of the federal balance, see The Feder- particular States. See post, at 1875–1876. alist No. 39, the Constitution is solicitous of But in McCulloch v. Maryland, the Court set the prerogatives of the States, even in an forth its authoritative rejection of this idea: otherwise sovereign federal province. The ‘‘The Convention which framed the consti- Constitution uses state boundaries to fix the tution was indeed elected by the State size of congressional delegations, Art. I, § 2, legislatures. But the instrument TTT was cl. 3, ensures that each State shall have at submitted to the peopleTTTT It is true, least one representative, ibid., grants States they assembled in their several States— certain powers over the times, places, and and where else should they have assem- manner of federal elections (subject to con- bled? No political dreamer was ever wild gressional revision), Art. I, § 4, cl. 1, re- enough to think of breaking down the lines quires that when the President is elected by which separate the States, and of com- the House of Representatives, the dele- pounding the American people into one gaStions842 from each State have one vote, Art. common mass. Of consequence, when II, § 1, cl. 3, and Amdt. 12, and allows States they act, they act in their States. But to appoint electors for the President, Art. II, S 841the measures they adopt do not, on that § 1, cl. 2. Nothing in the Constitution or account, cease to be the measures of the The Federalist Papers, however, supports people themselves, or become the mea- the idea of state interference with the most sures of the State governments.’’ 4 basic relation between the National Govern- Wheat., at 403. ment and its citizens, the selection of legisla- The political identity of the entire people tive representatives. Indeed, even though of the Union is reinforced by the proposition, the Constitution uses the qualifications for which I take to be beyond dispute, that, voters of the most numerous branch of the though limited as to its objects, the National States’ own legislatures to set the qualifica- Government is, and must be, controlled by tions of federal electors, Art. I, § 2, cl. 1, the people without collateral interference by when these electors vote, we have recognized the States. McCulloch affirmed this proposi- that they act in a federal capacity and exer- tion as well, when the Court rejected the cise a federal right. Addressing this princi- suggestion that States could interfere with ple in Ex parte Yarbrough the Court stated federal powers. ‘‘This was not intended by as follows: ‘‘[T]he right to vote for a member the American people. They did not design to of Congress’’ is an ‘‘office TTT created by that make their government dependent on the Constitution, and by that aloneTTTT It is not States.’’ Id., at 432. The States have no true, therefore, that electors for members of power, reserved or otherwise, over the exer- Congress owe their right to vote to the State cise of federal authority within its proper law in any sense which makes the exercise of sphere. See id., at 430 (where there is an the right to depend exclusively on the law of attempt at ‘‘usurpation of a power which the the State.’’ 110 U.S., at 663–664, 4 S.Ct., at people of a single State cannot give,’’ there 158. We made the same point in United can be no question whether the power ‘‘has States v. Classic, 313 U.S. 299, 315, 61 S.Ct. been surrendered’’ by the people of a single 1031, 1037–1038, 85 L.Ed. 1368 (1941), when State because ‘‘[t]he right never existed’’). we said: ‘‘[T]he right of qualified voters with- That the States may not invade the sphere of in a state to cast their ballots and have them federal sovereignty is as incontestable, in my counted at Congressional elections TTT is a view, as the corollary proposition that the right secured by the Constitution’’ and ‘‘is 1874 115 SUPREME COURT REPORTER 514 U.S. 842 secured against the action of individuals as under the Constitution, rights that stem from well as of states.’’ sources other than the States. Though the The federal character of congressional Slaughter–House Cases interpreted the Priv- elections flows from the political reality that ileges and Immunities Clause of the Four- our National Government is republican in teenth Amendment, its view of the origins of form and that national citizenship has privi- federal citizenship was not confined to that leges and immunities protected from state source. Referring to these rights of national abridgment by the force of the Constitution dimension and origin the Court observed: itself. Even before the passage of the Four- ‘‘But lest it should be said that no such teenth Amendment, the latter proposition privileges and immunities are to be found if was given expression in Crandall v. Nevada those we have been considering are excluded, where the Court recognized the right of the we venture to suggest some which owe their Federal Government to call ‘‘any or all of its existence to the Federal government, its Na- citizens to aid in its service, as members of tional character, its Constitution, or its laws.’’ the Congress, of the courts, of the executive Id., at 79. Later cases only reinforced the departments, and to fill all its other offices,’’ idea that there are such incidents of national and further recognized that ‘‘this right can- citizenship. See Ex S 844parte Yarbrough, su- not be made to depend upon the pleasure of pra; Terral v. Burke Constr. Co., 257 U.S. a State over whose S 843territory they must 529, 42 S.Ct. 188, 66 L.Ed. 352 (1922); Unit- pass to reach the point where these services ed States v. Classic, supra; United States v. must be rendered.’’ 6 Wall., at 43. And Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 without reference to the Privileges and Im- L.Ed.2d 239 (1966); Shapiro v. Thompson, munities Clause, the rights of national citi- 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 zenship were upheld again in United States (1969). Federal privileges and immunities v. Cruikshank, 92 U.S. 542, 552, 23 L.Ed. 588 may seem limited in their formulation by (1876), where the Court said: ‘‘The right of comparison with the expansive definition giv- the people peaceably to assemble for the en to the privileges and immunities attrib- purpose of petitioning Congress for a redress uted to state citizenship, see Slaughter– of grievances, or for any thing else connected House Cases, supra, at 78; Hague, supra, at with the powers or the duties of the national 520, 59 S.Ct., at 966 (opinion of Stone, J.), but government, is an attribute of national citi- that federal rights flow to the people of the zenship, and, as such, under the protection United States by virtue of national citizen- of, and guaranteed by, the United States. ship is beyond dispute. The very idea of a government, republican in Not the least of the incongruities in the form, implies a right on the part of its citi- position advanced by Arkansas is the propo- zens to meet peaceably for consultation in sition, necessary to its case, that it can bur- respect to public affairs and to petition for a den the rights of resident voters in federal redress of grievances.’’ Cf. Hague v. Com- elections by reason of the manner in which mittee for Industrial Organization, 307 U.S. they earlier had exercised it. If the majority 496, 513, 59 S.Ct. 954, 963, 83 L.Ed. 1423 of the voters had been successful in selecting (1939) (opinion of Roberts, J., joined by a candidate, they would be penalized from Black, J., and joined in relevant part by exercising that same right in the future. Hughes, C.J.) (‘‘Citizenship of the United Quite apart from any First Amendment con- States would be little better than a name if it cerns, see Williams v. Rhodes, 393 U.S. 23, did not carry with it the right to discuss 30, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968); national legislation and the benefits, advan- Anderson v. Celebrezze, 460 U.S. 780, 786– tages, and opportunities to accrue to citizens 788, 103 S.Ct. 1564, 1568–1569, 75 L.Ed.2d therefrom’’). 547 (1983), neither the law nor federal theory In the Slaughter–House Cases, 16 Wall. 36, allows a State to burden the exercise of 78–80, 21 L.Ed. 394 (1873), the Court was federal rights in this manner. See Terral v. careful to hold that federal citizenship in and Burke Constr. Co., supra, at 532, 42 S.Ct., at of itself suffices for the assertion of rights 188–89; Shapiro v. Thompson, supra, at 514 U.S. 846 U.S. TERM LIMITS, INC. v. THORNTON 1875 Cite as 115 S.Ct. 1842 (1995) 629–631, 89 S.Ct., at 1329. Indeed, as one of may prescribe any qualifications for those the ‘‘right[s] of the citizen[s] of this great representatives. The majority therefore de- country, protected by implied guarantees of fends the right of the people of Arkansas to its Constitution,’’ the Court identified the ‘‘choose whom they please to govern them’’ right ‘‘ ‘to come to the seat of government by invalidating a provision that won nearly TTT to share its offices, to engage in adminis- 60% of the votes cast in a direct election and tering its functions.’ ’’ Slaughter–House that carried every congressional district in Cases, supra, at 79 (quoting Crandall v. Ne- the State. vada, 6 Wall., at 44). This observation I dissent. Nothing in the Constitution de- serves to illustrate the extent of the State’s prives the people of each State of the power attempted interference with the federal right to prescribe eligibility requirements for the to vote (and the derivative right to serve if candidates who seek to represent them in elected by majority vote) in a congressional Congress. The Constitution is simply silent election, rights that do not derive from the on this question. And where the Constitu- state power in the first instance but that tion is silent, it raises no bar to action by the belong to the voter in his or her capacity as a States or the people. citizen of the United States. It is maintained by our dissenting col- S 846I leagues that the State of Arkansas seeks Because the majority fundamentally mis- nothing more than to grant its peoSple sur- 845 understands the notion of ‘‘reserved’’ powers, er control over the National Government, a I start with some first principles. Contrary control, it is said, that will be enhanced by to the majority’s suggestion, the people of the law at issue here. The arguments for the States need not point to any affirmative term limitations (or ballot restrictions having grant of power in the Constitution in order to the same effect) are not lacking in force; but prescribe qualifications for their representa- the issue, as all of us must acknowledge, is tives in Congress, or to authorize their elect- not the efficacy of those measures but wheth- ed state legislators to do so. er they have a legitimate source, given their origin in the enactments of a single State. A There can be no doubt, if we are to respect the republican origins of the Nation and pre- Our system of government rests on one serve its federal character, that there exists a overriding principle: All power stems from federal right of citizenship, a relationship the consent of the people. To phrase the between the people of the Nation and their principle in this way, however, is to be impre- National Government, with which the States cise about something important to the notion may not interfere. Because the Arkansas of ‘‘reserved’’ powers. The ultimate source enactment intrudes upon this federal domain, of the Constitution’s authority is the consent it exceeds the boundaries of the Constitution. of the people of each individual State, not the consent of the undifferentiated people of the Justice THOMAS, with whom THE Nation as a whole. CHIEF JUSTICE, Justice O’CONNOR, and The ratification procedure erected by Arti- Justice SCALIA join, dissenting. cle VII makes this point clear. The Consti- It is ironic that the Court bases today’s tution took effect once it had been ratified by decision on the right of the people to ‘‘choose the people gathered in convention in nine whom they please to govern them.’’ See different States. But the Constitution went ante, at 1845, 1850, 1851, 1862. Under our into effect only ‘‘between the States so ratify- Constitution, there is only one State whose ing the same,’’ Art. VII; it did not bind the people have the right to ‘‘choose whom they people of North Carolina until they had ac- please’’ to represent Arkansas in Congress. cepted it. In Madison’s words, the popular The Court holds, however, that neither the consent upon which the Constitution’s au- elected legislature of that State nor the peo- thority rests was ‘‘given by the people, not as ple themselves (acting by ballot initiative) individuals composing one entire nation, but 1876 115 SUPREME COURT REPORTER 514 U.S. 846 as composing the distinct and independent their state government. As far as S 848the States to which they respectively belong.’’ Federal Constitution is concerned, then, the The Federalist No. 39, p. 243 (C. Rossiter ed. States can exercise all powers that the Con- 1961) (hereinafter The Federalist). Accord, stitution does not withhold from them. The 3 Debates in the Several State Conventions Federal Government and the States thus face on the Adoption of the Federal Constitution different default rules: Where the Constitu- 94 (J. Elliot 2d ed. 1876) (hereinafter Elliot) tion is silent about the exercise of a particu- (remarks of James Madison at the Virginia lar power—that is, where the Constitution Convention).1 does not speak either expressly or by neces- sary implication—the Federal Government S 847When they adopted the Federal Consti- tution, of course, the people of each State lacks that power and the States enjoy it. surrendered some of their authority to the These basic principles are enshrined in the United States (and hence to entities account- Tenth Amendment, which declares that all able to the people of other States as well as powers neither delegated to the Federal Gov- to themselves). They affirmatively deprived ernment nor prohibited to the States ‘‘are their States of certain powers, see, e.g., Art. reserved to the States respectively, or to the I, § 10, and they affirmatively conferred cer- people.’’ With this careful last phrase, the tain powers upon the Federal Government, Amendment avoids taking any position on see, e.g., Art. I, § 8. Because the people of the division of power between the state gov- the several States are the only true source of ernments and the people of the States: It is power, however, the Federal Government en- up to the people of each State to determine joys no authority beyond what the Constitu- which ‘‘reserved’’ powers their state govern- tion confers: The Federal Government’s ment may exercise. But the Amendment powers are limited and enumerated. In the does make clear that powers reside at the words of Justice Black: ‘‘The United States state level except where the Constitution re- is entirely a creature of the Constitution. Its moves them from that level. All powers that power and authority have no other source.’’ the Constitution neither delegates to the Reid v. Covert, 354 U.S. 1, 5–6, 77 S.Ct. 1222, Federal Government nor prohibits to the 1225, 1 L.Ed.2d 1148 (1957) (plurality opin- States are controlled by the people of each ion) (footnote omitted). State. In each State, the remainder of the peo- To be sure, when the Tenth Amendment ple’s powers—‘‘[t]he powers not delegated to uses the phrase ‘‘the people,’’ it does not the United States by the Constitution, nor specify whether it is referring to the people prohibited by it to the States,’’ Amdt. 10— of each State or the people of the Nation as a are either delegated to the state government whole. But the latter interpretation would or retained by the people. The Federal Con- make the Amendment pointless: There stitution does not specify which of these two would have been no reason to provide that possibilities obtains; it is up to the various where the Constitution is silent about wheth- state constitutions to declare which powers er a particular power resides at the state the people of each State have delegated to level, it might or might not do so. In addi-

1. The ringing initial words of the Constitution— necticut, New–York, New–Jersey, Pennsylvania, ‘‘We the People of the United States’’—convey Delaware, Maryland, Virginia, North–Carolina, something of the same idea. (In the Constitu- South–Carolina, and GeorgiaTTTT’’ 2 Records of tion, after all, ‘‘the United States’’ is consistently the Federal Convention of 1787, p. 565 (M. Far- a plural noun. See Art. I, § 9, cl. 8; Art. II, § 1, rand ed. 1911) (hereinafter Farrand). Scholars cl. 7; Art. III, § 2, cl. 1; Art. III, § 3, cl. 1; cf. have suggested that the Committee of Style Amar, Of Sovereignty and Federalism, 96 Yale adopted the current language because it was not L.J. 1425, 1455 (1987) (noting this fact, though clear that all the States would actually ratify the reaching other conclusions).) The Preamble that Constitution. M. Farrand, The Framing of the the Philadelphia Convention approved before Constitution of the United States 190–191 (1913). sending the Constitution to the Committee of In this instance, at least, I agree with the majori- Style is even clearer. It began: ‘‘We the people ty that the Committee’s edits did not work a of the States of New–Hampshire, Massachusetts, substantive change in the Constitution. Cf. ante, Rhode–Island and Providence Plantations, Con- at 1849, n. 8. 514 U.S. 850 U.S. TERM LIMITS, INC. v. THORNTON 1877 Cite as 115 S.Ct. 1842 (1995) tion, it would make no sense to speak of selves refused to ratify. See Art. V (provid- powers as being reserved to the undifferenti- ing that proposed amendments shall take ated people of the Nation as a whole, because effect upon ratification by three-quarters of the Constitution does not contemplate that the States). At the same time, however, the those people will either exercise power or people of each State retained their separate delegate it. The Constitution simply does political identities. As Chief Justice Mar- not recognize any mechanism for action by shall put it, ‘‘[n]o political dreamer was ever the undifferentiated people of the Nation. wild enough to think of breaking down the Thus, the amendment provision of Article lines which separate the States, and of com- S 849V calls for amendments to be ratified not pounding the American people into one com- by a convention of the national people, but by mon mass.’’ McCulloch v. Maryland, 4 conventions of the people in each State or by Wheat. 316, 403, 4 L.Ed. 579 (1819).2 the state legislatures elected by those people. S 850Any ambiguity in the Tenth Amend- Likewise, the Constitution calls for Members ment’s use of the phrase ‘‘the people’’ is of Congress to be chosen State by State, cleared up by the body of the Constitution rather than in nationwide elections. Even itself. Article I begins by providing that the the selection of the President—surely the Congress of the United States enjoys ‘‘[a]ll most national of national figures—is accom- legislative Powers herein granted,’’ § 1, and plished by an electoral college made up of goes on to give a careful enumeration of delegates chosen by the various States, and Congress’ powers, § 8. It then concludes by candidates can lose a Presidential election enumerating certain powers that are prohib- despite winning a majority of the votes cast ited to the States. The import of this struc- in the Nation as a whole. See also Art. II, ture is the same as the import of the Tenth § 1, cl. 3 (providing that when no candidate Amendment: If we are to invalidate Arkan- secures a majority of electoral votes, the sas’ Amendment 73, we must point to some- election of the President is thrown into the thing in the Federal Constitution that de- House of Representatives, where ‘‘the Votes prives the people of Arkansas of the power to shall be taken by States, the Representatives enact such measures. from each State having one Vote’’); Amdt. 12 (same). B In short, the notion of popular sovereignty The majority disagrees that it bears this that undergirds the Constitution does not burden. But its arguments are unpersua- erase state boundaries, but rather tracks sive. them. The people of each State obviously did trust their fate to the people of the 1 several States when they consented to the The majority begins by announcing an Constitution; not only did they empower the enormous and untenable limitation on the governmental institutions of the United principle expressed by the Tenth Amend- States, but they also agreed to be bound by ment. According to the majority, the States constitutional amendments that they them- possess only those powers that the Constitu-

2. The concurring opinion appears to draw pre- profess to establish.’’ McCulloch, 4 Wheat., at cisely the opposite conclusion from the passage 363) (argument of counsel). Marshall’s opinion in McCulloch that contains this sentence. See accepted this premise, even borrowing some of ante, at 1873. But while the concurring opinion counsel’s language. See id., at 403. What Mar- seizes on Marshall’s references to ‘‘the people,’’ shall rejected was counsel’s conclusion that the Marshall was merely using that phrase in contra- Constitution therefore was merely ‘‘a compact distinction to ‘‘the State governments.’’ Counsel between the States.’’ See id., at 363 (argument for Maryland had noted that ‘‘the constitution of counsel). As Marshall explained, the acts of was formed and adopted, not by the people of the ‘‘the people themselves’’ in the various ratifying United States at large, but by the people of the conventions should not be confused with ‘‘the respective States. To suppose that the mere measures of the State governments.’’ Id., at 403; proposition of this fundamental law threw the see also id., at 404 (noting that no state govern- American people into one aggregate mass, would ment could control whether the people of that be to assume what the instrument itself does not State decided to adopt the Constitution). 1878 115 SUPREME COURT REPORTER 514 U.S. 850 tion affirmatively grants to them or that they by the Federal Constitution are reserved ‘‘to enjoyed before the Constitution was adopted; the States respectively, or to the people.’’ the Tenth Amendment ‘‘could only ‘reserve’ The majority is therefore quite wrong to that S 851which existed before.’’ Ante, at 1854. conclude that the people of the States cannot From the fact that the States had not previ- authorize their state governments to exercise ously enjoyed any powers over the particular any powers that were unknown to the States institutions of the Federal Government es- when the Federal Constitution was drafted. 3 tablished by the Constitution, the majority Indeed, the majority’s position frustrates the derives a rule precisely opposite to the one apparent purpose of the Amendment’s final that the Amendment actually prescribes: phrase. The Amendment does not pre-empt ‘‘ ‘[T]he states can exercise no powers what- any limitations on state power found in the soever, which exclusively spring out of the state constitutions, as it might have done if it existence of the national government, which simply had said that the powers not delegat- the constitution does not delegate to them.’ ’’ ed to the Federal Government are reserved Ibid. (quoting 1 J. Story, Commentaries on to the States. But the Amendment also does the Constitution of the United States § 627 not prevent the people of the States from (3d ed. 1858)). amending their state constitutions to remove limitations that were in effect when the Fed- The majority’s essential logic is that the eral Constitution and the Bill of Rights were state governments could not ‘‘reserve’’ any ratified. powers that they did not control at the time the Constitution was drafted. But it was not In an effort to defend its position, the the state governments that were doing the majority points to language in Garcia v. San reserving. The Constitution derives its au- Antonio Metropolitan Transit Authority, thority instead from the consent of the people 469 U.S. 528, 549, 105 S.Ct. 1005, 1016–17, 83 of the States. Given the fundamental princi- L.Ed.2d 1016 (1985), which it takes to indi- ple that all governmental powers stem from cate that the Tenth Amendment covers only the people of the States, it would simply be ‘‘the original powers of [state] sovereignty.’’ incoherent to assert that the people of the Ante, at 1854. But Garcia dealt with an States could not reserve any powers that entirely different issue: the extent to which they had not previously controlled. principles of state sovereignty implicit in our federal system curtail Congress’ authority to The Tenth Amendment’s use of the word exercise its enumerated powers. When we ‘‘reserved’’ does not help the majority’s posi- are asked to decide whether a congressional tion. If someone says that the power to use statute that appears to have been authorized a particular facility is reserved to some by Article I is nonetheless unconstitutional group, he is not saying anything about because it invades a protected sphere of state whether that group has previously used the sovereignty, it may well be appropriate for facility. He is merely saying that the us to inquire into what we have called the peoSple852 who control the facility have desig- ‘‘traditional aspects of state sovereignty.’’ nated that group as the entity with authority See National League of Cities v. Usery, 426 to use it. The Tenth Amendment is similar: U.S. 833, 841, 849, 96 S.Ct. 2465, 2469, 2473, The people of the States, from whom all 49 L.Ed.2d 245 (1976); see also New York v. governmental powers stem, have specified United States, 505 U.S. 144, 156–157, 112 that all powers not prohibited to the States S.Ct. 2408, 2417–2418, 120 L.Ed.2d 120

3. At the time of the framing, of course, a Federal XXVII (prescribing such qualifications), in 3 Fed- Congress had been operating under the Articles eral and State Constitutions 1695–1696 (F. of Confederation for some 10 years. The States Thorpe ed. 1909) (hereinafter Thorpe); N.H. unquestionably had enjoyed the power to estab- Const. of 1784, Pt. II (same), in 4 Thorpe 2467. lish qualifications for their delegates to this body, It is surprising, then, that the concurring opinion above and beyond the qualifications created by seeks to buttress the majority’s case by stressing the Articles themselves. See Brief for Respon- the continuing applicability of ‘‘the same republi- dents Bobbie E. Hill et al. 39, n. 79 (conceding can principles’’ that had prevailed under the this point); see also, e.g., Md. Const. of 1776, Art. Articles. See ante, at 1872. 514 U.S. 854 U.S. TERM LIMITS, INC. v. THORNTON 1879 Cite as 115 S.Ct. 1842 (1995)

(1992). The question S 853raised by the pres- effort to accomplish objects entrusted to it by ent case, however, is not whether any princi- the Constitution. Chief Justice Marshall’s ple of state sovereignty implicit in the Tenth opinion began by upholding the federal stat- Amendment bars congressional action that ute incorporating the bank. Id., at 400–425. Article I appears to authorize, but rather It then held that the Constitution affirma- whether Article I bars state action that it tively prohibited Maryland’s tax on the bank does not appear to forbid. The principle created by this statute. Id., at 425–437. necessary to answer this question is express The Court relied principally on concepts that on the Tenth Amendment’s face: Unless the it deemed inherent in the Supremacy Clause Federal Constitution affirmatively prohibits of Article VI, which declares that ‘‘[t]his Con- an action by the States or the people, it stitution, and the Laws of the United States raises no bar to such action. which shall be made in Pursuance thereof, The majority also seeks support for its TTT shall be the supreme Law of the view of the Tenth Amendment in McCulloch LandTTTT’’ In the Court’s view, when a v. Maryland, 4 Wheat. 316, 4 L.Ed. 579 power has been ‘‘delegated to the United (1819). See ante, at 1854. But this effort is States by the Constitution,’’ Amdt. 10, the misplaced. McCulloch did make clear that a Supremacy Clause forbids a State to ‘‘retard, power need not be ‘‘expressly’’ delegated to impede, burden, or in any manner control, the United States or prohibited to the States the operations of the constitutional laws en- in order to fall outside the Tenth Amend- acted by Congress to carry [that power] into ment’s reservation; delegations and prohibi- execution.’’ McCulloch, 4 Wheat., at 436. tions can also arise by necessary implication.4 Thus, the Court concluded that the very na- True to the text of the Tenth Amendment, ture of state taxation on the bank’s opera- however, McCulloch indicated that all powers tions was ‘‘incompatible with, and repugnant as to which the Constitution does not speak to,’’ the federal statute creating the bank. (whether expressly or by necessary implica- See id., at 425. tion) are ‘‘reserved’’ to the state level. Thus, in its only discussion of the Tenth Amend- For the past 175 years, McCulloch has ment, McCulloch observed that the Amend- been understood to rest on the proposition ment ‘‘leav[es] the question, whether the par- that the Constitution affirmatively barred ticular power which may become the subject Maryland from imposing its tax on the bank’s of contest has been delegated to the one operations. See, e.g., Osborn v. Bank of government, or prohibited to the other, to United States, 9 Wheat. 738, 859–868, 6 depend on a fair construction of the whole L.Ed. 204 (1824) (reaffirming McCulloch ’s [Constitution].’’ 4 Wheat., at 406. McCul- conclusion that by operation of the Suprema- loch did not qualify this observation by indi- cy Clause, the federal statute incorporating cating that the question also turned on the bank impliedly pre-empted state laws whether the States had enjoyed the power attempting to tax the bank’s operations); before the framing. To the contrary, McCul- Maryland v. Louisiana, 451 U.S. 725, 746, loch seemed to assume that the people had 101 S.Ct. 2114, 2129, 68 L.Ed.2d 576 (1981) ‘‘conferred on the general government the (citing McCulloch for the proposition that the power contained in the constitution, and on Supremacy Clause deprives the States of the the States the whole residuum of power.’’ power to pass laws that conflict with federal Id., at 410. statutes); see also North Dakota v. United The structure of McCulloch ’s analysis also States, 495 U.S. 423, 434, 110 S.Ct. 1986, refutes the majority’s position. The question 1994, 109 L.Ed.2d 420 (1990) (plurality opin- before the Court was S 854whether the State of ion) (citing McCulloch for the proposition Maryland could tax the Bank of the United that state laws may violate the Supremacy States, which Congress had created in an Clause when they ‘‘regulate the Government

4. Despite the majority’s odd suggestion to the agree with this sensible position. See supra, at contrary, see ante, at 1851–1852, n. 12, I fully 1876. 1880 115 SUPREME COURT REPORTER 514 U.S. 854

5 directly or discriminate against S 855it’’). For understanding of the Constitution, they rep- the majority, however, McCulloch apparently resent only his own understanding. In a turned on the fact that before the Constitu- range of cases concerning the federal/state tion was adopted, the States had possessed relation, moreover, this Court has deemed no power to tax the instrumentalities of the positions taken in Story’s commentaries to be governmental institutions that the Constitu- more nationalist than the Constitution war- tion created. This understanding of McCul- rants. Compare, e.g., id., §§ 1063–1069 (ar- loch makes most of Chief Justice Marshall’s guing that the Commerce Clause deprives opinion irrelevant; according to the majority, the States of the power to regulate any com- there was no need to inquire into whether merce within Congress’ reach), with Cooley federal law deprived Maryland of the power v. Board of Wardens of Port of Philadelphia in question, because the power could not fall ex rel. Soc. for Relief of Distressed Pilots, 12 into the category of ‘‘reserved’’ powers any- How. 299, 13 L.Ed. 996 (1852) (holding that way.6 Congress’ Commerce Clause powers are not exclusive). See also 1 Life and Letters of S 856Despite the majority’s citation of Garcia Joseph Story 296 (W. Story ed. 1851) (extract and McCulloch, the only true support for its of manuscript written by Story) (‘‘I hold it to view of the Tenth Amendment comes from be a maxim, which should never be lost sight Joseph Story’s 1833 treatise on constitutional of by a great statesman, that the Govern- law. See 2 J. Story, Commentaries on the ment of the United States is S 857intrinsically Constitution of the United States §§ 623– too weak, and the powers of the State Gov- 628. Justice Story was a brilliant and ac- ernments too strong’’). In this case too, complished man, and one cannot casually dis- Story’s position that the only powers re- miss his views. On the other hand, he was served to the States are those that the States not a member of the Founding generation, enjoyed before the framing conflicts with and his Commentaries on the Constitution both the plain language of the Tenth Amend- were written a half century after the fram- ment and the underlying theory of the Con- ing. Rather than representing the original stitution.

5. Though cited by the majority, see ante, at 1854, did not include the right ‘‘to tax the means Crandall v. Nevada, 6 Wall. 35, 18 L.Ed. 745 employed by the government of the Union, for (1868), did not deviate from this accepted view of the execution of its powers.’’ Id., at 430. In this McCulloch. See Crandall, supra, at 48 (observ- respect, then, the Court was referring to the ing that McCulloch and a number of other cases States’ ‘‘original’’ powers in much the same con- ‘‘distinctly placed the invalidity of the State taxes text as Garcia v. San Antonio Metropolittan Tran- on the ground that they interfered with an au- sit Authority, 469 U.S. 528, 105 S.Ct. 1005, 83 thority of the Federal government’’). L.Ed.2d 1016 (1985): The Court was examining whether Congress’ exercise of the ‘‘privilege of exempting its own measures from State taxa- 6. To support its decision to attribute such sur- tion,’’ McCulloch, supra, at 434, had invaded a plusage to McCulloch, the majority quotes Mar- protected sphere of state sovereignty. shall’s observation that his opinion ‘‘ ‘does not Marshall did go on to argue that the power to deprive the States of any resources which they tax the operations of the Bank of the United originally possessed,’ ’’ because the power to tax States simply was not susceptible to control by federal instrumentalities was not encompassed the people of a single State. See 4 Wheat., at by the States’ ‘‘ ‘original right to tax.’ ’’ Ante, at 430. But that theory is perfectly consistent with 1854 (quoting McCulloch, 4 Wheat., at 436, 430). my position. Marshall reasoned that the people In part, Marshall was simply refuting counsel’s of a single State may not tax the instrumentali- argument that it would constitute an ‘‘over- ties employed by the people of all the States whelming invasion of State sovereignty’’ for Con- through the National Government, because such gress to establish a bank that operated within a taxation would effectively subject the people of State but that nonetheless was exempt from state the several States to the taxing power of a single taxes. See Id., at 337–339 (argument of counsel) State. See id., at 428. This sort of argument (stressing that ‘‘the right to raise revenue’’ is ‘‘the proves that the people of a single State may not highest attribute of sovereignty’’ and indeed prescribe qualifications for the President of the amounts to ‘‘the right to exist’’). While Marshall United States; the selection of the President, like acknowledged that ‘‘this original right of taxa- the operation of the Bank of the United States, is tion’’ was an ‘‘essential’’ attribute of state sover- not up to the people of any single State. See eignty that Congress could not constitutionally infra, at 1882. It does not follow, however, that control or invade, he focused more precisely the people of a single State may not prescribe than counsel on ‘‘the nature and extent of this qualifications for their own representatives in original right,’’ id., at 428, and concluded that it Congress. 514 U.S. 859 U.S. TERM LIMITS, INC. v. THORNTON 1881 Cite as 115 S.Ct. 1842 (1995) 2 each State, not some abstract people of the Nation as a whole. The majority also sketches out what may be an alternative (and narrower) argument. The concurring opinion suggests that this Again citing Story, the majority suggests cannot be so, because it is the Federal Con- that it would be inconsistent with the notion stitution that guarantees the right of the of ‘‘national sovereignty’’ for the States or people of each State (so long as they are the people of the States to have any reserved qualified electors under state law) to take powers over the selection of Members of part in choosing the Members of Congress Congress. See ante, at 1855, 1855–1856. from that State. See ante, at 1873–1874. The majority apparently reaches this conclu- But the presence of a federally guaranteed sion in two steps. First, it asserts that be- right hardly means that the selection of those cause Congress as a whole is an institution of representatives constitutes ‘‘the exercise of the National Government, the individual federal authority.’’ See ante, at 1873. When Members of Congress ‘‘owe primary alle- the people of Georgia pick their representa- giance not to the people of a State, but to the tives in Congress, they are acting as the people of the Nation.’’ See ante, at 1855. people of Georgia, not as the corporate Second, it concludes that because each Mem- agents for the undifferentiated people of the ber of Congress has a nationwide constituen- Nation as a whole. See In re Green, 134 cy once he takes office, it would be inconsis- U.S. 377, 379, 10 S.Ct. 586, 587, 33 L.Ed. 951 tent with the Framers’ scheme to let a single (1890) (‘‘Although [Presidential] electors are State prescribe qualifications for him. See appointed and act under and pursuant to the ante, at 1855, 1871. Constitution of the United States, they are no more officers or agents of the United Political scientists can debate about who States than are the members of the state commands the ‘‘primary allegiance’’ of Mem- legislatures when acting as electors of federal bers of Congress once they reach Washing- senators, or the people of the States when ton. From the framing to the present, how- acting as electors of representatives in Con- ever, the selection of the Representatives gress’’). The concurring opinion protests and Senators from each State has been left that the exercise of ‘‘reserved’’ powers in the entirely to the people of that State or to their area of congressional elections would consti- state legislature. See Art. I, § 2, cl. 1 (pro- tute ‘‘state interference with the most basic viding that Members of the House of Repre- relation between the NaStional Government sentatives are chosen ‘‘by the People of the 859 and its citizens, the selection of legislative several States’’); Art. I, § 3, cl. 1 (originally representatives.’’ See ante, at 1873. But providing that the Senators from each State when one strips away its abstractions, the are ‘‘chosen by the Legislature thereof’’); concurring opinion is simply saying that the Amdt. 17 (amending § 3 to provide that the people of Arkansas cannot be permitted to Senators from each State are ‘‘elected by the inject themselves into the process by which people thereof’’). The very name ‘‘congress’’ they themselves select Arkansas’ representa- suggests a S coming together of representa- 858 tives in Congress. tives from distinct entities.7 In keeping with the complexity of our federal system, once The concurring opinion attempts to defend the representatives chosen by the people of this surprising proposition by pointing out each State assemble in Congress, they form that Americans are ‘‘citizens of the United a national body and are beyond the control of States’’ as well as ‘‘of the State wherein they the individual States until the next election. reside,’’ Amdt. 14 § 1, and that national citi- But the selection of representatives in Con- zenship (particularly after the ratification of gress is indisputably an act of the people of the Fourteenth Amendment) ‘‘has privileges

7. See 1 S. Johnson, A Dictionary of the English Dictionary of the English Language (6th ed. Language 393 (4th ed. 1773) (defining ‘‘con- 1796) (‘‘an appointed meeting for settlement of gress’’ as ‘‘[a]n appointed meeting for settlement affairs between different nations; the assembly of affairs between different nations: as, the con- which governs the United States of America’’). gress of Cambray’’); T. Sheridan, A Complete 1882 115 SUPREME COURT REPORTER 514 U.S. 859 and immunities protected from state abridg- gress ‘‘shall receive a Compensation for their ment by the force of the Constitution itself,’’ Services, to be ascertained by Law, and paid ante, at 1874. These facts are indeed ‘‘be- out of the Treasury of the United States.’’ yond dispute,’’ ante, at 1874, but they do not Art. I, § 6, cl. 1; see ante, at 1855. But the contradict anything that I have said. Al- fact that Members of Congress draw a feder- though the United States obviously is a Na- al salary once they have assembled hardly tion, and although it obviously has citizens, means that the people of the States lack the Constitution does not call for Members of reserved powers over the selection of their Congress to be elected by the undifferentiat- representatives. Indeed, the historical evi- ed national citizenry; indeed, it does not dence about the compensation provision sug- recognize any mechanism at all (such as a gests that the States’ reserved powers may national referendum) for action by the undif- even extend beyond the selection stage. The ferentiated people of the Nation as a whole. majority itself indicates that if the Constitu- See supra, at 1877. Even at the level of tion had made no provision for congressional national politics, then, there always remains compensation, this topic would have been a meaningful distinction between someone ‘‘left to state legislatures.’’ Ante, at 1858; who is a citizen of the United States and of accord, 1 Farrand 215–216 (remarks of Georgia and someone who is a citizen of the James Madison and George Mason); id., at United States and of Massachusetts. The 219, n. *. Likewise, Madison specifically in- Georgia citizen who is unaware of this dis- dicated that even with the compensation pro- tinction will have it pointed out to him as vision in place, the individual States still soon as he tries to vote in a Massachusetts S 861enjoyed the reserved power to supplement congressional election. the federal salary. 3 id., at 315 (remarks at In short, while the majority is correct that the Virginia ratifying convention). the Framers expected the selection process As for the fact that a State has no re- to create a ‘‘direct link’’ between Members of served power to establish qualifications for the House of Representatives and the people, the office of President, see ante, at 1855, it ante, at 1855, the link was between the Rep- surely need not follow that a State has no resentatives from each State and the people reserved power to establish qualifications for of that State; the people of Georgia have no the Members of Congress who represent the say over whom the people of Massachusetts people of that State. Because powers are select to represent them in Congress. This reserved to the States ‘‘respectively,’’ it is 8 arrangeSment860 must baffle the majority, clear that no State may legislate for another whose understanding of Congress would State: Even though the Arkansas Legisla- surely fit more comfortably within a system ture enjoys the reserved power to pass a of nationwide elections. But the fact remains minimum-wage law for Arkansas, it has no that when it comes to the selection of Mem- power to pass a minimum-wage law for Ver- bers of Congress, the people of each State mont. For the same reason, Arkansas may have retained their independent political not decree that only Arkansas citizens are identity. As a result, there is absolutely eligible to be President of the United States; nothing strange about the notion that the the selection of the President is not up to people of the States or their state legisla- Arkansas alone, and Arkansas can no more tures possess ‘‘reserved’’ powers in this area. prescribe the qualifications for that office The majority seeks support from the Con- than it can set the qualifications for Members stitution’s specification that Members of Con- of Congress from Florida. But none of this

8. The majority even suggests that congressional v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 elections do not really work in this way, because L.Ed.2d 491 (1969). Whether or not § 5 directs each House of Congress has the power to judge each House to judge state-law disqualifications its Members’ qualifications. See ante, at 1855 as well as those contained in the Constitution, (citing Art. I, § 5, cl. 1). But the power to act as see infra, at 1897–1898, it is clear that neither ‘‘Judge’’ under Art. I, § 5, is merely the power to House may exclude a representative from Massa- apply pre-existing qualifications to which the chusetts for failure to meet a qualification that people of each State have consented. See Powell the people of Massachusetts have not accepted. 514 U.S. 863 U.S. TERM LIMITS, INC. v. THORNTON 1883 Cite as 115 S.Ct. 1842 (1995) suggests that Arkansas cannot set qualifica- fluous if the people of the States enjoyed tions for Members of Congress from Arkan- reserved powers in this area. sas. Only one constitutional provision—the In fact, the Constitution’s treatment of Times, Places and Manner Clause of Article Presidential elections actively contradicts the I, § 4—even arguably supports the majori- majority’s position. While the individual ty’s suggestion. It reads: States have no ‘‘reserved’’ power to set quali- ‘‘The Times, Places and Manner of hold- fications for the office of President, we have ing Elections for Senators and Representa- long understood that they do have the power tives, shall be prescribed in each State by (as far as the Federal Constitution is con- the Legislature thereof; but the Congress cerned) to set qualifications for their Presi- may at any time by Law make or alter dential electors—the delegates that each such Regulations, except as to the Places State selects to represent it in the electoral of chusing Senators.’’ college that actually chooses the Nation’s Contrary to the majority’s assumption, how- chief executive. Even respondents do not ever, this Clause does not delegate any au- dispute that the States may establish qualifi- thority to the States. Instead, it simply im- cations for their delegates to the electoral poses a duty upon them. The majority gets college, as long as those qualifications pass it exactly right: By specifying that the state muster under other constitutional provisions legislatures ‘‘shall’’ prescribe the details nec- (primarily the First and Fourteenth Amend- essary to hold congressional elections, the ments). See Williams v. Rhodes, 393 U.S. Clause ‘‘expressly requires action by the 23, 29, 89 S.Ct. 5, 9–10, 21 L.Ed.2d 24 (1968); States.’’ S 863See ante, at 1855. This com- McPherson v. Blacker, 146 U.S. 1, 27–36, 13 mand meshes with one of the principal pur- S.Ct. 3, 7–11, 36 L.Ed. 869 (1892). As the poses of Congress’ ‘‘make or alter’’ power: to majority cannot argue that the ConstiStu- ensure that the States hold congressional 9 tion862 affirmatively grants this power, the elections in the first place, so that Congress power must be one that is ‘‘reserved’’ to the continues to exist. As one reporter summa- States. It necessarily follows that the major- rized a speech made by John Jay at the New ity’s understanding of the Tenth Amendment York ratifying convention: is incorrect, for the position of Presidential ‘‘[E]very government was imperfect, un- elector surely ‘‘ ‘spring[s] out of the existence less it had a power of preserving itself. of the national government.’ ’’ See ante, at Suppose that, by design or accident, the 1854. states should neglect to appoint represen- 3 tatives; certainly there should be some In a final effort to deny that the people of constitutional remedy for this evil. The the States enjoy ‘‘reserved’’ powers over the obvious meaning of the paragraph was, selection of their representatives in Con- that, if this neglect should take place, Con- gress, the majority suggests that the Consti- gress should have power, by law, to sup- tution expressly delegates to the States cer- port the government, and prevent the dis- tain powers over congressional elections. solution of the Union. [Jay] believed this See ante, at 1855–1856. Such delegations of was the design of the federal Convention.’’ power, the majority argues, would be super- 2 Elliot 326 (emphasis in original).10

9. The only provision that might conceivably do 10. Accord, e.g., 2 Elliot 24 (remarks of Caleb so is Article II, § 1, which recognizes the author- Strong at the Massachusetts ratifying convention) ity of state legislatures to specify the ‘‘Manner’’ (‘‘[I]f the legislature of a state should refuse to in which a State appoints its Presidential make such regulations, the consequence will be, electors. But if a qualifications law is a ‘‘Man- that the representatives will not be chosen, and ner’’ regulation for purposes of this Clause, then the general government will be dissolved. In it is also a ‘‘Manner’’ regulation for purposes of such case, can gentlemen say that a power to Article I, § 4—which would mean that the Con- remedy the evil is not necessary to be lodged stitution specifically recognizes the power of somewhere? And where can it be lodged but in both the States and the Congress to set qualifica- Congress?’’); 2 Documentary History of the Rati- tions for Senators and Representatives. fication of the Constitution 400 (M. Jensen ed. 1884 115 SUPREME COURT REPORTER 514 U.S. 863

Constitutional provisions that impose affir- According to respondent Thornton, this pro- mative duties on the States are hardly incon- vision ‘‘grants States authority to prescribe sistent with the notion of reserved powers. the qualifications of [voters]’’ in congressional elections. Brief for Respondent Congress- S Of course, the second part of the Times, 864 man Ray Thornton 4. If anything, however, Places and Manner Clause does grant a pow- the Clause limits the power that the States er rather than impose a duty. As its con- would otherwise enjoy. Though it does leave trasting uses of the words ‘‘shall’’ and ‘‘may’’ States with the ability to control who may confirm, however, the Clause grants power vote S in congressional elections, it has the exclusively to Congress, not to the States. If 865 effect of restricting their authority to estab- the Clause did not exist at all, the States lish special requirements that do not apply in would still be able to prescribe the times, elections for the state legislature. places, and manner of holding congressional elections; the deletion of the provision would Our case law interpreting the Clause affir- simply deprive Congress of the power to matively supports the view that the States override these state regulations. enjoy reserved powers over congressional elections. We have treated the Clause as a The majority also mentions Article II, § 1, one-way ratchet: While the requirements for cl. 2: ‘‘Each State shall appoint, in such voting in congressional elections cannot be Manner as the Legislature thereof may di- more onerous than the requirements for vot- rect, a Number of [Presidential] Electors, ing in elections for the most numerous equal to the whole Number of Senators and branch of the state legislature, they can be Representatives to which the State may be less so. See Tashjian v. Republican Party entitled in the CongressTTTT’’ But this of Conn., 479 U.S. 208, 225–229, 107 S.Ct. Clause has nothing to do with congressional 544, 554–556, 93 L.Ed.2d 514 (1986). If this elections, and in any event it, too, imposes an interpretation of the Clause is correct, it affirmative obligation on the States. In fact, means that even with the Clause in place, some such barebones provision was essential States still have partial freedom to set spe- in order to coordinate the creation of the cial voting requirements for congressional electoral college. As mentioned above, more- elections. As this power is not granted in over, it is uncontested that the States enjoy Article I, it must be among the ‘‘reserved’’ the reserved power to specify qualifications powers. for the Presidential electors who are chosen pursuant to this Clause. See supra, at 1882– II 1883. I take it to be established, then, that the people of Arkansas do enjoy ‘‘reserved’’ pow- Respondent Thornton seeks to buttress ers over the selection of their representatives the majority’s position with Article I, § 2, cl. in Congress. Purporting to exercise those 1, which provides: reserved powers, they have agreed among ‘‘The House of Representatives shall be themselves that the candidates covered by composed of Members chosen every sec- § 3 of Amendment 73—those whom they ond Year by the People of the several have already elected to three or more terms States, and the Electors in each State shall in the House of Representatives or to two or have the Qualifications requisite for more terms in the Senate—should not be Electors of the most numerous Branch of eligible to appear on the ballot for reelection, the State Legislature.’’ but should nonetheless be returned to Con-

1976) (notes of Anthony Wayne at the Pennsylva- These statements about the Clause’s purposes nia ratifying convention) (‘‘4th section occa- also help refute the majority’s claim that it was sioned by an eventual invasion, insurrection, bizarre for the Framers to leave the States rela- etc.’’); The Federalist No. 59, at 363 (Hamilton) tively free to enact qualifications for congression- (observing that if not subject to any checks, the al office while simultaneously giving Congress States ‘‘could at any moment annihilate [the Fed- ‘‘make or alter’’ power over the States’ time, eral Government] by neglecting to provide for place, and manner regulations. See infra, at the choice of persons to administer its affairs’’). 1899–1900. 514 U.S. 867 U.S. TERM LIMITS, INC. v. THORNTON 1885 Cite as 115 S.Ct. 1842 (1995) gress if enough voters are sufficiently enthu- first election laws. The historical evidence siastic about their candidacy to write in their thus refutes any notion that the Qualifica- names. Whatever one might think of the tions Clauses were generally understood to wisdom of this arrangement, we may not be exclusive. Yet the majority must estab- override the decision of the people of Arkan- lish just such an understanding in order to sas unless something in the Federal Consti- justify its position that the Clauses impose tution deprives them of the power to enact unstated prohibitions on the States and the such measures. people. In my view, the historical evidence The majority settles on ‘‘the Qualifications is simply inadequate to warrant the majori- Clauses’’ as the constitutional provisions that ty’s S 867conclusion that the Qualifications Amendment 73 violates. See ante, at 1856. Clauses mean anything more than what they Because I do not read those provisions to say. imSpose866 any unstated prohibitions on the States, it is unnecessary for me to decide A whether the majority is correct to identify The provisions that are generally known as Arkansas’ ballot-access restriction with laws the Qualifications Clauses read as follows: fixing true term limits or otherwise prescrib- ‘‘No Person shall be a Representative ing ‘‘qualifications’’ for congressional office. who shall not have attained to the age of As I discuss in Part A below, the Qualifica- twenty five Years, and been seven Years a tions Clauses are merely straightforward Citizen of the United States, and who shall recitations of the minimum eligibility require- not, when elected, be an Inhabitant of that ments that the Framers thought it essential State in which he shall be chosen.’’ Art. I, for every Member of Congress to meet. § 2, cl. 2. They restrict state power only in that they prevent the States from abolishing all eligi- ‘‘No Person shall be a Senator who shall bility requirements for membership in Con- not have attained to the Age of thirty gress. Years, and been nine Years a Citizen of the United States, and who shall not, when Because the text of the Qualifications elected, be an Inhabitant of that State for Clauses does not support its position, the which he shall be chosen.’’ Art. I, § 3, cl. majority turns instead to its vision of the 3. democratic principles that animated the Framers. But the majority’s analysis goes Later in Article I, the ‘‘Ineligibility Clause’’ to a question that is not before us: whether imposes another nationwide disqualification Congress has the power to prescribe qualifi- from congressional office: ‘‘[N]o Person hold- cations for its own members. As I discuss in ing any Office under the United States, shall Part B, the democratic principles that con- be a Member of either House during his tributed to the Framers’ decision to withhold Continuance in Office.’’ § 6, cl. 2. this power from Congress do not prove that The majority is quite correct that the the Framers also deprived the people of the ‘‘negative phrasing’’ of these Clauses has lit- States of their reserved authority to set eligi- tle relevance. See ante, at 1849–1850, n. 8. bility requirements for their own representa- The Qualifications Clauses would mean the tives. same thing had they been enacted in the In Part C, I review the majority’s more form that the Philadelphia Convention re- specific historical evidence. To the extent ferred them to the Committee of Style: that they bear on this case, the records of the ‘‘Every Member of the House of Represen- Philadelphia Convention affirmatively sup- tatives shall be of the age of twenty-five port my unwillingness to find hidden mean- years at least; shall have been a citizen of ing in the Qualifications Clauses, while the the United States for at least seven years surviving records from the ratification de- before his election; and shall be, at the bates help neither side. As for the postrati- time of his election, an inhabitant of the fication period, five States supplemented the State in which he shall be chosen.’’ 2 constitutional disqualifications in their very Farrand 565. 1886 115 SUPREME COURT REPORTER 514 U.S. 867

See also id., at 567 (same phrasing for Sen- federalism. At most, the specification of cer- ate Qualifications Clause). But these dif- tain nationwide disqualifications in the Con- ferent formulations—whether negative or stitution implies the negation of other na- affirmative—merely establish minimum tionwide disqualifications; it does not imply qualificaStions.868 They are quite different that individual States or their people are from an exclusive formulation, such as the barred from adopting their own following: S 869disqualifications on a state-by-state basis. ‘‘Every Person who shall have attained to Thus, the one delegate to the Philadelphia the age of twenty five Years, and been Convention who voiced anything approaching seven Years a Citizen of the United States, Story’s argument said only that a recital of and who shall, when elected, be an Inhabit- qualifications in the Constitution would imply ant of that State in which he shall be that Congress lacked any qualification-setting chosen, shall be eligible to be a Represen- power. See 2 Farrand 123 (remarks of John tative.’’ Dickinson); cf. ante, at 1850, n. 9, and 1860– At least on their face, then, the Qualifications 1861, n. 27. Clauses do nothing to prohibit the people of a The Qualifications Clauses do prevent the State from establishing additional eligibility individual States from abolishing all eligibili- requirements for their own representatives. ty requirements for Congress. This restric- Joseph Story thought that such a prohibi- tion on state power reflects the fact that tion was nonetheless implicit in the constitu- when the people of one State send immature, tional list of qualifications, because ‘‘[f]rom disloyal, or unknowledgeable representatives the very nature of such a provision, the to Congress, they jeopardize not only their affirmation of these qualifications would own interests but also the interests of the seem to imply a negative of all others.’’ 1 people of other States. Because Congress Commentaries on the Constitution of the wields power over all the States, the people United States § 624 (1833); see also ante, at 1850 n. 9. This argument rests on the max- of each State need some guarantee that the im expressio unius est exclusio alterius. legislators elected by the people of other When the Framers decided which qualifica- States will meet minimum standards of com- tions to include in the Constitution, they also petence. The Qualifications Clauses provide decided not to include any other qualifica- that guarantee: They list the requirements tions in the Constitution. In Story’s view, it that the Framers considered essential to pro- would conflict with this latter decision for the tect the competence of the National Legisla- 11 people of the individual States to decide, as a ture. matter of state law, that they would like their If the people of a State decide that they own representatives in Congress to meet ad- would like their representatives to possess ditional eligibility requirements. additional qualifications, however, they have To spell out the logic underlying this argu- done nothing to frustrate the policy behind ment is to expose its weakness. Even if one the Qualifications Clauses. Anyone who pos- were willing to ignore the distinction between sesses all of the constitutional qualifications, requirements enshrined in the Constitution plus some qualifications required by state and other requirements that the Framers law, still has all of the federal qualifications. were content to leave within the reach of S 870Accordingly, the fact that the Constitution ordinary law, Story’s application of the ex- specifies certain qualifications that the Fram- pressio unius maxim takes no account of ers deemed necessary to protect the compe-

11. Thus, the age requirement was intended to were not unduly susceptible to foreign influence. ensure that Members of Congress were people of See, e.g., 2 id., at 216 (remarks of George Ma- mature judgment and experience. See, e.g., 1 son). The inhabitancy requirement was intended Farrand 375 (remarks of George Mason at the to produce a National Legislature whose Mem- Philadelphia Convention); 3 id., at 147 (remarks bers, collectively, had a local knowledge of all of James McHenry before the Maryland House of the States. See, e.g., The Federalist No. 56 (Mad- Delegates). The citizenship requirement was in- ison). The Ineligibility Clause was intended to tended both to ensure that Members of Congress guard against corruption. See, e.g., 1 Farrand were familiar with the country and that they 381 (remarks of Alexander Hamilton). 514 U.S. 872 U.S. TERM LIMITS, INC. v. THORNTON 1887 Cite as 115 S.Ct. 1842 (1995) tence of the National Legislature does not Tenth Amendment and the Constitution’s ex- imply that it strips the people of the individu- press prohibitions on the States, ‘‘caution al States of the power to protect their own should be exercised before concluding that interests by adding other requirements for unstated limitations on state power were in- their own representatives. tended by the Framers’’). Many of the pro- The people of other States could legiti- hibitions listed in S 871§ 10, moreover, might mately complain if the people of Arkansas have been thought to be implicit in other decide, in a particular election, to send a 6– constitutional provisions or in the very na- year–old to Congress. But the Constitution ture of our federal system. Compare, e.g., gives the people of other States no basis to Art. II, § 2, cl. 2 (‘‘[The President] shall have complain if the people of Arkansas elect a Power, by and with the Advice and Consent freshman representative in preference to a of the Senate, to make Treaties’’), and Art. I, long-term incumbent. That being the case, it § 8, cl. 5 (‘‘The Congress shall have Power is hard to see why the rights of the people of TTT [t]o coin Money’’), with Art. I, § 10, cl. 1 other States have been violated when the (‘‘No State shall enter into any Treaty’’ and people of Arkansas decide to enact a more ‘‘No State shall TTT coin Money’’); see also general disqualification of long-term incum- Art. VI, cl. 2 (explicitly declaring that state bents. Such a disqualification certainly is law cannot override the Constitution). The subject to scrutiny under other constitutional fact that the Framers nonetheless made provisions, such as the First and Fourteenth these prohibitions express confirms that one Amendments. But as long as the candidate should not lightly read provisions like the whom they send to Congress meets the con- Qualifications Clauses as implicit depriva- stitutional age, citizenship, and inhabitancy tions of state power. See generally Barron requirements, the people of Arkansas have ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. not violated the Qualifications Clauses. 243, 249, 8 L.Ed. 672 (1833).12 This conclusion is buttressed by our reluc- tance to read constitutional provisions to pre- The majority responds that ‘‘a patchwork clude state power by negative implication. of state qualifications’’ would ‘‘undermin[e] The very structure of the Constitution coun- the uniformity and the national character sels such hesitation. After all, § 10 of Arti- that the Framers envisioned and sought to cle I contains a brief list of express prohibi- ensure.’’ Ante, at 1864. Yet the Framers tions on the States. Cf. Cipollone v. Liggett thought it perfectly consistent with the ‘‘na- Group, Inc., 505 U.S. 504, 517–519, 112 S.Ct. tional character’’ of Congress for the Sena- 2608, 2618–2619, 120 L.Ed.2d 407 (1992) tors and Representatives from each State to (STEVENS, J.) (applying the expressio uni- be chosen by the legislature or the people of us maxim to conclude that Congress’ inclu- that State. The majority never explains why sion of an express pre-emption clause in a Congress’ fundamental character permits federal statute implies that state laws beyond this state-centered system, but nonetheless the reach of that clause are not pre-empted); prohibits S 872the people of the States and Nevada v. Hall, 440 U.S. 410, 425, 99 S.Ct. their state legislatures from setting any eligi- 1182, 1190, 59 L.Ed.2d 416 (1979) (STE- bility requirements for the candidates who VENS, J.) (suggesting that in light of the seek to represent them.

12. The principle that the Constitution rests on that courts should hesitate to read federal stat- the consent of the people of the States points in utes to pre-empt state law, because ‘‘to give the the same direction. Both the process of select- state-displacing weight of federal law to mere ing delegates to the Philadelphia Convention and congressional ambiguity would evade the very the ratification procedure erected by Article VII procedure for lawmaking on which Garcia [v. were designed to let the States and the people of San Antonio Metropolitan Transit Authority, 469 the States protect their interests. Lest those protections be evaded, one should not be quick to U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 read the Qualifications Clauses as imposing un- (1985) ] relied to protect states’ interests’’); Greg- stated prohibitions that pre-empt all state qualifi- ory v. Ashcroft, 501 U.S. 452, 464, 111 S.Ct. cations laws. Cf. L. Tribe, American Constitu- 2395, 2403, 115 L.Ed.2d 410 (1991) (applying tional Law § 6–25, p. 480 (2d ed. 1988) (arguing this argument). 1888 115 SUPREME COURT REPORTER 514 U.S. 872

As for the majority’s related assertion that guide us, we must be guided by principles of the Framers intended qualification require- a general natureTTTT’’ Cases of Contested ments to be uniform, this is a conclusion, not Elections in Congress 32 (M. Clarke & D. an argument. Indeed, it is a conclusion that Hall eds. 1834) (reporting proceedings from the Qualifications Clauses themselves contra- May 22, 1789). dict. At the time of the framing, and for some years thereafter, the Clauses’ citizen- Even after Congress chose to exercise its ship requirements incorporated laws that power to prescribe a uniform route to natu- varied from State to State. Thus, the Quali- ralization, the durational element of the citi- fications Clauses themselves made it possible zenship requirement in the Qualifications that a person would be qualified to represent Clauses ensured that variances in state law State A in Congress even though a similarly would continue to matter. Thus, in 1794 the situated person would not be qualified to Senate refused to seat Albert Gallatin be- represent State B. cause, owing to the individual peculiarities of To understand this point requires some the laws of the two relevant States, he had background. Before the Constitution was not been a citizen for the required nine adopted, citizenship was controlled entirely years. Id., at 859–862, 867 (reporting pro- by state law, and the different States estab- ceedings from February 20 and 28, 1794). lished different criteria. See J. Kettner, De- Even if the Qualifications Clauses had not velopment of American Citizenship, 1608– themselves incorporated nonuniform require- 1870, pp. 213–218 (1978). Even after the ments, of course, there would still be no basis Constitution gave Congress the power to ‘‘es- for the assertion of the plurality below that TTT tablish an uniform Rule of Naturalization they mandate ‘‘uniformity in qualifications.’’ throughout the United States,’’ Art. I, § 8, cl. See 316 Ark. 251, 265, 872 S.W.2d 349, 356 4, Congress was under no obligation to do so, (1994). The Clauses wholly omit the exclu- and the Framers surely expected state law to sivity provision that, according to both the continue in full force unless and until Con- plurality below and today’s majority, was gress acted. Cf. Sturges v. Crowninshield, 4 their central focus. In fact, neither the text Wheat. 122, 196, 4 L.Ed. 529 (1819) (so inter- nor the apparent purpose of the Qualifica- preting the other part of § 8, cl. 4, which tions Clauses does anything to refute Thom- empowers Congress to establish ‘‘uniform as Jefferson’s elegant legal analysis: Laws on the subject of Bankruptcies’’).13 Accordingly, the constitutional requirement S 874‘‘Had the Constitution been silent, no- that S 873Members of Congress be United body can doubt but that the right to States citizens meant different things in dif- prescribe all the qualifications and dis- ferent States. The very first contested-elec- qualifications of those they would send to tion case in the House of Representatives, represent them, would have belonged to which involved the citizenship of a would-be the State. So also the Constitution Congressman from South Carolina, illus- might have prescribed the whole, and ex- trates this principle. As Representative cluded all others. It seems to have pre- James Madison told his colleagues, ‘‘I take it ferred the middle way. It has exercised to be a clear point, that we are to be guided, the power in part, by declaring some dis- in our decision, by the laws and constitution qualificationsTTTT But it does not de- of South Carolina, so far as they can guide clare, itself, that the member shall not us; and where the laws do not expressly be a lunatic, a pauper, a convict of trea-

13. Even when Congress enacted the first federal at 199, the early cases on this question took the naturalization law in 1790, it left open the possi- opposite view. See Collet v. Collet, 2 Dall. 294, bility that the individual States could establish 296, 1 L.Ed. 387 (CC Pa.1792) (Wilson, Blair, more lenient standards of their own for admit- and Peters, JJ.). States therefore continued to ting people to citizenship. While Hamilton had enact naturalization laws of their own until 1795, suggested that Congress’ power to ‘‘establish an when Congress passed an exclusive naturaliza- Uniform Rule’’ logically precluded the States tion law. See J. Kettner, Development of Ameri- from deviating downward from the rule that can Citizenship, 1608–1870, pp. 242–243 (1978). Congress established, see The Federalist No. 32, 514 U.S. 876 U.S. TERM LIMITS, INC. v. THORNTON 1889 Cite as 115 S.Ct. 1842 (1995) son, of murder, of felony, or other infa- the authority to set qualifications, but rather mous crime, or a non-resident of his dis- that nothing in the Constitution grants Con- trict; nor does it prohibit to the State gress this power. In the absence of such a the power of declaring these, or any oth- grant, Congress may not act. But deciding er disqualifications which its particular whether the Constitution denies the qualifi- circumstances may call for; and these cation-setting power to the States and the may be different in different States. Of people of the States requires a fundamentally course, then, by the tenth amendment, different legal analysis. the power is reserved to the State.’’ Letter to Joseph C. Cabell (Jan. 31, Despite the majority’s claims to the con- 1814), in 14 Writings of Thomas Jeffer- trary, see ante, at 1851–1852, n. 12, this son 82–83 (A. Lipscomb ed. 1904).14 explanation for Congress’ incapacity to sup- plement the Qualifications Clauses is perfect- B ly consistent with the reasoning of Powell v. Although the Qualifications Clauses nei- McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 ther state nor imply the prohibition that it L.Ed.2d 491 (1969). Powell concerned the finds in them, the majority infers from the scope of Article I, § 5, which provides that Framers’ ‘‘democratic principles’’ that the ‘‘[e]ach House [of Congress] shall be the Clauses must have been generally under- Judge of the Elections, Returns and Qualifi- stood to preclude the people of the States cations of its own Members.’’ As the majori- and their state legislatures from prescribing ty itself recognizes, ‘‘[t]he principal issue [in any additional qualifications for their repre- Powell ] was whether the power granted to sentatives in Congress. But the majority’s each House in Art. I, § 5, TTT includes the evidence on this point establishes only two power to impose qualifications other than more modest propositions: (1) the Framers those set forth in the text of the Constitu- did not want the Federal Constitution itself tion.’’ Ante, at 1847. Contrary to the ma- to impose a S 875broad set of disqualifications jority’s suggestion, then, the critical question for congressional office, and (2) the Framers in Powell was whether § 5 conferred a quali- did not want the Federal Congress to be able fication-setting power—not whether the Qua- to supplement the few disqualifications that liSfications876 Clauses took it away. Compare the Constitution does set forth. The logical Powell, supra, at 519, 89 S.Ct., at 1963 (de- conclusion is simply that the Framers did not scribing the question before the Court as want the people of the States and their state ‘‘what power the Constitution confers upon legislatures to be constrained by too many the House through Art. I, § 5’’), and at 536, qualifications imposed at the national level. 89 S.Ct., at 1971–72 (describing the Court’s The evidence does not support the majority’s task as ‘‘determining the meaning of Art. I, more sweeping conclusion that the Framers § 5’’) with ante, at 1848, and 1849–1850, n. 8 intended to bar the people of the States and (suggesting that Powell held that the Qualifi- their state legislatures from adopting addi- cations Clauses ‘‘limit the power of the House tional eligibility requirements to help narrow to impose additional qualifications’’). See their own choices. also Buckley v. Valeo, 424 U.S. 1, 133, 96 I agree with the majority that Congress S.Ct. 612, 689, 46 L.Ed.2d 659 (1976) (taking has no power to prescribe qualifications for my view of Powell ). its own Members. This fact, however, does not show that the Qualifications Clauses con- Powell ’s analysis confirms this point. Af- tain a hidden exclusivity provision. The rea- ter summarizing a large quantity of historical son for Congress’ incapacity is not that the material bearing on the original understand- Qualifications Clauses deprive Congress of ing of what it meant for a legislature to act

14. The majority notes Jefferson’s concession that But while Jefferson cautioned against impugning state power to supplement the Qualifications the motives of people who might disagree with Clauses was ‘‘one of the doubtful questions on his position, his use of the phrase ‘‘[o]f course’’ which honest men may differ with the purest of suggests that he himself did not entertain serious motives.’’ See ante, at 1860, n. 24; 14 Writings doubts of its correctness. of Thomas Jefferson 83 (A. Lipscomb ed. 1904). 1890 115 SUPREME COURT REPORTER 514 U.S. 876 as ‘‘the Judge’’ of the qualifications of its had to use a different calculus in determining members, see 395 U.S., at 521–531, 89 S.Ct., whether to deprive them of this power. at 1963–1969, Powell went on to stress that As the majority argues, democratic princi- the Philadelphia Convention specifically re- ples also contributed to the Framers’ deci- jected proposals to grant Congress the power sion to withhold the qualification-setting pow- to pass laws prescribing additional qualifica- er from Congress. But the majority is tions for its Members, and that the Conven- wrong to suggest that the same principles tion rejected these proposals on the very must also have led the Framers to deny this same day that it approved the precursor of power to the people of the States and the § 5. See id., at 533–536, 89 S.Ct., at 1970– state legislatures. In particular, it simply is 1972. Given this historical evidence, the not true that ‘‘the source of the qualification Powell Court refused to read § 5 as empow- is of little moment in assessing the qualifica- ering the House to prescribe such additional tion’s restrictive impact.’’ Ante, at 1863. qualifications in its capacity as ‘‘Judge.’’ There is a world of difference between a self- And if nothing in the Constitution gave the imposed constraint and a constraint imposed House this power, it inevitably followed that from above. the House could not exercise it. Despite the majority’s claims, then, Powell itself rested Congressional power over qualifications on the proposition that the institutions of the would have enabled the representatives from Federal Government enjoy only the powers some States, acting collectively in the Nation- that are granted to them. See also ante, at al Legislature, to prevent the people of an- 1850, n. 9 (describing the Qualifications other State from electing their preferred candidates. The John Wilkes episode in Clauses merely as an independent basis for 18th–century England illustrates the prob- the result reached in Powell ).15 lems that might result. As the majority

S 877The fact that the Framers did not grant mentions, Wilkes’ district repeatedly elected a qualification-setting power to Congress him to the House of Commons, only to have a does not imply that they wanted to bar its majority of the representatives of other exercise at the state level. One reason why S 878districts frustrate their will by voting to the Framers decided not to let Congress exclude him. See ante, at 1848. Americans prescribe the qualifications of its own Mem- who remembered these events might well bers was that incumbents could have used have wanted to prevent the National Legisla- this power to perpetuate themselves or their ture from fettering the choices of the people ilk in office. As Madison pointed out at the of any individual State (for the House of Philadelphia Convention, Members of Con- Representatives) or their state legislators (for the Senate). gress would have an obvious conflict of inter- est if they could determine who may run Yet this is simply to say that qualifications against them. 2 Farrand 250; see also ante, should not be set at the national level for at 1850, n. 10. But neither the people of the offices whose occupants are selected at the States nor the state legislatures would labor state level. The majority never identifies the under the same conflict of interest when democratic principles that would have been prescribing qualifications for Members of violated if a state legislature, in the days Congress, and so the Framers would have before the Constitution was amended to pro-

15. The majority also errs in its interpretation of not even appear in the House Qualifications Nixon v. United States, 506 U.S. 224, 113 S.Ct. Clause of § 2. Thus, Nixon merely said that § 5 732, 122 L.Ed.2d 1 (1993). See ante, at 1851– directs the House to judge the qualifications ‘‘set 1852, n. 12. In dictum, Nixon did refer to ‘‘the forth in Art. I, § 2,’’ and not qualifications of its fixed meaning of ‘[q]ualifications’ set forth in Art. own invention. See also infra, at 1899. There I, § 2.’’ 506 U.S., at 237, 113 S.Ct., at 740. 07 would have been no occasion for Nixon to extend But as both the surrounding context and the Powell: The only point of its discussion was to internal punctuation of this passage make clear, explain why the question at issue in Powell was Nixon was referring to the meaning of the word justiciable, while the question at issue in Nixon ‘‘Qualifications’’ in § 5; that term, after all, does (which concerned impeachment) was not. 514 U.S. 880 U.S. TERM LIMITS, INC. v. THORNTON 1891 Cite as 115 S.Ct. 1842 (1995) vide for the direct election of Senators, had choose, but also ‘‘the egalitarian concept that imposed some limits of its own on the field of the opportunity to be elected [is] open to all.’’ candidates that it would consider for appoint- See ante, at 1850; see also ante, at 1862– ment.16 Likewise, the majority does not ex- 1863. To the extent that the second idea has plain why democratic principles prohibit the any content independent of the first, the people of a State from adopting additional majority apparently would read the Qualifica- eligibility requirements to help narrow their tions Clauses to create a personal right to be choices among candidates seeking to repre- a candidate for Congress, and then to set sent them in the House of Representatives. that right above the authority of the people Indeed, the invocation of democratic princi- of the States to prescribe eligibility require- ples to invalidate Amendment 73 seems par- ments for public office. But we have never ticularly difficult in the present case, because suggested that ‘‘the opportunity to be elect- Amendment 73 remains fully within the con- ed’’ is open even to those whom the voters trol of the people of Arkansas. If they want- have decided not to elect. On that rationale, ed to repeal it (despite the 20–point margin a candidate might have a right to appear on by which they enacted it less than three the ballot in the general election even though years ago), they could do so by a simple he lost in the primary. But see Storer v. majority vote. See Ark. Const., Amdt. 7. Brown, 415 U.S. 724, 746, n. 16, 94 S.Ct. The majority appears to believe that re- 1274, 1287, n. 16, 39 L.Ed.2d 714 (1974); see strictions on eligibility for office are inherent- also Bullock v. Carter, 405 U.S. 134, 142–143, ly undemocratic. But the Qualifications 92 S.Ct. 849, 855–56, 31 L.Ed.2d 92 (1972) Clauses themselves prove that the Framers (rejecting the proposition that there is any did not share this view; eligibility require- fundamental right to be a candidate, separate ments to which the people of the States and apart from the electorate’s right to vote). consent are perfectly consistent with the Thus, the majority ultimately concedes that its ‘‘egalitarian concept’’ derives entirely FramSers’879 scheme. In fact, we have de- scribed ‘‘the authority of the people of the from the electorate’s right to choose. See States to determine the qualifications of their ante, at 1850, n. 11; see also ante, at 1862 most important government officials’’ as ‘‘an (deriving the ‘‘egalitarian S 880ideal’’ from the authority that lies at the heart of representa- proposition that the Qualifications Clauses do tive government.’’ Gregory v. Ashcroft, 501 not unduly ‘‘ ‘fetter the judgment TTT of the U.S. 452, 463, 111 S.Ct. 2395, 2402, 115 people’ ’’ (quoting The Federalist No. 57, at L.Ed.2d 410 (1991) (internal quotation marks 351)). If the latter is not violated, then omitted) (refusing to read federal law to pre- neither is the former. clude States from imposing a mandatory re- In seeking ratification of the Constitution, tirement age on state judges who are subject James Madison did assert that ‘‘[u]nder to periodic retention elections). When the these reasonable limitations [set out in the people of a State themselves decide to re- House Qualifications Clause], the door of this strict the field of candidates whom they are part of the federal government is open to willing to send to Washington as their repre- merit of every descriptionTTTT’’ The Feder- sentatives, they simply have not violated the alist No. 52, at 326. The majority stresses principle that ‘‘the people should choose this assertion, and others to the same effect, whom they please to govern them.’’ See 2 in support of its ‘‘egalitarian concept.’’ See Elliot 257 (remarks of Alexander Hamilton at ante, at 1850–1851, 1862–1863, and n. 30. the New York Convention). But there is no reason to interpret these At one point, the majority suggests that statements as anything more than claims the principle identified by Hamilton encom- that the Constitution itself imposes relatively passes not only the electorate’s right to few disqualifications for congressional of-

16. Oregon, for instance, pioneered a system in tional Limits on Federal Congressional Terms, 53 which the state legislature bound itself to appoint U.Pitt.L.Rev. 97, 108 (1991). The majority is in the candidates chosen in a statewide vote of the the uncomfortable position of suggesting that this people. See Hills, A Defense of State Constitu- system violated ‘‘democratic principles.’’ 1892 115 SUPREME COURT REPORTER 514 U.S. 880 fice.17 One should not lightly assume that majority offers no reason to believe that

MadiSson881 and his colleagues, who were at- state legislatures could not adopt prospective tempting to win support at the state level for rules to guide themselves in carrying out this the new Constitution, were proclaiming the responsibility; not only is there no express inability of the people of the States or their language in the Constitution barring legisla- state legislatures to prescribe any eligibility tures from passing laws to narrow their requirements for their own Representatives choices, but there also is absolutely no basis or Senators. Instead, they were merely re- for inferring such a prohibition. Imagine the sponding to the charge that the Constitution worst-case scenario: a state legislature, was undemocratic and would lead to aristoc- wishing S 882to punish one of the Senators racies in office. Cf. ante, at 1849 (referring from its State for his vote on some bill, to ‘‘the antifederalist charge that the new enacts a qualifications law that the Senator Constitution favored the wealthy and well does not satisfy. The Senator would still be born’’). The statement that the qualifications able to serve out his term; the Constitution imposed in the Constitution are not unduly provides for Senators to be chosen for 6–year restrictive hardly implies that the Constitu- terms, Art. I, § 3, cl. 1, and a person who has tion withdrew the power of the people of been seated in Congress can be removed each State to prescribe additional eligibility only if two-thirds of the Members of his requirements for their own Representatives House vote to expel him, § 5, cl. 2. While if they so desired. the Senator would be disqualified from seek- In fact, the authority to narrow the field of ing reappointment, under the Framers’ Con- candidates in this way may be part and par- stitution the state legislature already enjoyed cel of the right to elect Members of Con- unfettered discretion to deny him reappoint- gress. That is, the right to choose may ment anyway. Instead of passing a qualifica- include the right to winnow. See Hills, A tions law, the legislature could simply have Defense of State Constitutional Limits on passed a resolution declaring its intention to Federal Congressional Terms, 53 appoint someone else the next time around. U.Pitt.L.Rev. 97, 107–109 (1991). Thus, the legislature’s power to adopt laws to narrow its own choices added nothing to its To appreciate this point, it is useful to general appointment power. consider the Constitution as it existed before the Seventeenth Amendment was adopted in While it is easier to coordinate a majority 1913. The Framers’ scheme called for the of state legislators than to coordinate a ma- legislature of each State to choose the Sena- jority of qualified voters, the basic principle tors from that State. Art. I, § 3, cl. 1. The should be the same in both contexts. Just as

17. For instance, the majority quotes Noah Web- gave the following explanation for his assertion ster’s observation that under the Constitution, that ‘‘[n]o man who has real merit TTT need ‘‘the places of senators are wisely left open to all despair’’ under the system erected by the Consti- persons of suitable age and merit, and who have tution: ‘‘He first distinguishes himself amongst been citizens of the United States for nine years.’’ his neighbours at township and county meeting; See ante, at 1863, n. 30 (citing ‘‘A Citizen of he is next sent to the State Legislature. In this America’’ (Oct. 17, 1787), in 1 Debate on the theatre his abilities TTT are TTT displayed to the Constitution 129, 142 (B. Bailyn ed. 1993) (here- views of every man in the State: from hence his inafter Bailyn)). But there is no reason to read ascent to a seat in Congress becomes easy and Webster as denying the power of state legisla- sure.’’ ‘‘Americanus,’’ Daily Advertiser, Dec. 12, tures to pass resolutions limiting the field of 1787, in 1 Bailyn 487, 492. As the States indis- potential candidates that they would consider for appointment to the Senate. Indeed, it seems putably controlled eligibility requirements for implausible that Webster would have been invok- membership in the various state legislatures, and ing the majority’s vision of ‘‘democratic princi- indeed had established some disqualifications, I ples’’ in support of the constitutional provisions do not read Stevens to be saying that they were calling for Senators to be appointed by the vari- barred from doing the same thing with respect to ous state legislatures rather than being elected Congress. Without addressing whether the peo- directly by the people of the States. ple of the States may supplement the Qualifica- Similarly, the majority quotes a newspaper tions Clauses, Stevens was merely praising the piece written by John Stevens, Jr., to the people Constitution for imposing few such requirements of New York. See ante, at 1863. But Stevens of its own. 514 U.S. 884 U.S. TERM LIMITS, INC. v. THORNTON 1893 Cite as 115 S.Ct. 1842 (1995) the state legislature enjoyed virtually unfet- But one need not agree with me that the tered discretion over whom to appoint to the people of each State may delegate their qual- Senate under Art. I, § 3, so the qualified ification-setting power in order to uphold Ar- voters of the State enjoyed virtually unfet- kansas’ Amendment 73. Amendment 73 is tered discretion over whom to elect to the not the act of a state legislature; it is the act House of Representatives under Art. I, § 2. of the people of Arkansas, adopted at a di- If there is no reason to believe that the rect election and inserted into the State Con- Framers’ Constitution barred state legisla- stitution. The majority never explains why tures from adopting prospective rules to nar- giving effect to the people’s decision would row their choices for Senator, then there is violate the ‘‘democratic principles’’ that un- also no reason to believe that it barred the dergird the Constitution. Instead, the ma- people of the States from adopting prospec- jority’s discussion of democratic principles is tive rules to narrow their choices for Repre- directed entirely to attacking eligibility re- sentative. In addition, there surely is no quirements imposed on the people of a State reason to believe that the Senate Qualifica- by an entity other than themselves. tions Clause suddenly acquired an exclusivity The majority protests that any distinction provision in 1913, when the Seventeenth between the people of the States and the Amendment was adopted. Now that the state legislatures is ‘‘untenable’’ and ‘‘aston- people of the States are charged with choos- ishing.’’ See ante, at 1858, n. 19. In the ing both Senators and Representatives, it limited area of congressional elections, how- follows that they may adopt eligibility re- ever, the Framers themSselves884 drew this quirements for Senators as well as for Rep- distinction: They specifically provided for resentatives. Senators to be chosen by the state legisla- tures and for Representatives to be chosen S 883I would go further, for I see nothing in by the people. In the context of congression- the Constitution that precludes the people of al elections, the Framers obviously saw a each State (if they so desire) from authoriz- meaningful difference between direct action ing their elected state legislators to pre- by the people of each State and action by scribe qualifications on their behalf. If the their state legislatures. people of a State decide that they do not Thus, even if one believed that the Fram- trust their state legislature with this power, ers intended to bar state legislatures from they are free to amend their state constitu- adopting qualifications laws that restrict the tion to withdraw it. This arrangement people’s choices, it would not follow that the seems perfectly consistent with the Framers’ people themselves are precluded from agree- scheme. From the time of the framing until ing upon eligibility requirements to help nar- after the Civil War, for example, the Federal row their own choices. To be sure, if the Constitution did not bar state governments Qualifications Clauses were exclusive, they from abridging the freedom of speech or the would bar all additional qualifications, wheth- freedom of the press, even when those free- er adopted by popular initiative or by statute. doms were being exercised in connection But the majority simply assumes that if state with congressional elections. It was the legislatures are barred from prescribing state constitutions that determined whether qualifications, it must be because the Qualifi- state governments could silence the support- cations Clauses are exclusive. It would ers of disfavored congressional candidates, strain the text of the Constitution far less to just as it was the state constitutions that locate the bar in Article I, § 2, and the determined whether the States could perse- Seventeenth Amendment instead: One could cute people who held disfavored religious plausibly maintain that qualification require- beliefs or could expropriate property without ments imposed by state legislatures violate providing just compensation. It would not the constitutional provisions entrusting the be at all odd if the state constitutions also selection of Members of Congress to the determined whether the state legislature people of the States, even while one acknowl- could pass qualifications statutes. edges that qualification requirements im- 1894 115 SUPREME COURT REPORTER 514 U.S. 884 posed by the people themselves are perfectly S 885In particular, the detail with which the constitutional. The majority never justifies majority recites the historical evidence set its conclusion that ‘‘democratic principles’’ forth in Powell v. McCormack, 395 U.S. 486, require it to reject even this intermediate 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969), should position. not obscure the fact that this evidence has no bearing on the question now before the C Court. As the majority ultimately concedes, In addition to its arguments about demo- see ante, at 1850, 1851, 1852, it does not cratic principles, the majority asserts that establish ‘‘the Framers’ intent that the quali- more specific historical evidence supports its fications in the Constitution be fixed and view that the Framers did not intend to exclusive,’’ ante, at 1849; it shows only that permit supplementation of the Qualifications Clauses. But when one focuses on the dis- the Framers did not intend Congress to be 18 tinction between congressional power to add able to enact qualifications laws. If qualifications for congressional office and the anySthing,886 the solidity of the evidence sup- power of the people or their state legisla- porting Powell ’s view that Congress lacks tures to add such qualifications, one realizes the power to supplement the constitutional that this assertion has little basis. disqualifications merely highlights the weak-

18. For instance, the majority quotes at length The majority does omit the context necessary from the debate that arose in the Philadelphia to understand one aspect of the historical evi- Convention when the Committee of Detail pro- dence presented in Powell. The majority quotes posed the following clause: ‘‘The Legislature of Powell ’s observation that ‘‘on the eve of the the United States shall have authority to establish Constitutional Convention, English precedent such uniform qualifications of the members of stood for the proposition that ‘the law of the land each House, with regard to property, as to the had regulated the qualifications of members to said Legislature shall seem expedient.’’ See 2 serve in parliament’ and those qualifications Farrand 179, 248–251; ante, at 1849. The defeat were ‘not occasional but fixed.’ ’’ 395 U.S., at of this proposal—like the defeat of Gouverneur Morris’ motion to drop the words ‘‘with regard 528, 89 S.Ct., at 1967–68 (quoting 16 Parliamen- to property’’ from the clause, so as to empower tary History of England 589, 590 (1769)); see Congress to enact qualifications of any sort— ante, at 1848. The English rule seems of only simply reflects the Framers’ decision not to grant marginal relevance: The pre-existing rule in Congress the power to supplement the constitu- America—that States could add qualifications for tional qualifications. Considered out of context, their representatives in Congress, see n. 3, supra, some of James Madison’s comments during the while Congress itself could not—is surely more debate might be thought to go farther. See ante, important. But in any event, Powell did not at 1849. But the majority itself properly dispels claim that the English rule deemed parliamenta- this false impression. See ante, at 1850, n. 10; ry qualifications to be fixed in the country’s (un- see also Powell v. McCormack, 395 U.S., at 534, written) constitution, beyond the reach of a prop- 89 S.Ct., at 1970–71. erly enacted law. Instead, qualifications were Likewise, Powell drew support from Alexander ‘‘fixed’’ rather than ‘‘occasional’’ only in the Hamilton’s comments in The Federalist No. 60, sense that neither House of Parliament could which the majority also quotes. See ante, at ‘‘exclude members-elect for general misconduct 1849. But as the majority concedes, when Ham- not within standing qualifications.’’ Powell, 395 ilton wrote that ‘‘[t]he qualifications of the per- U.S., at 528, 89 S.Ct. at 1968. The English rule, sons who may choose or be chosen [for Con- in other words, was simply that when sitting as gress] TTT are defined and fixed in the Constitu- the judge of its members’ qualifications, each tion, and are unalterable by the legislature,’’ he House of Parliament could do no more than was merely restating his prior observation that administer the pre-existing laws that defined the power to set qualifications ‘‘forms no part of the power to be conferred upon the national those qualifications, see id., at 529, 89 S.Ct., at government.’’ See The Federalist No. 60, at 371 1969, for ‘‘one House of Parliament cannot cre- (emphasis added). Indeed, only if ‘‘the legisla- ate a disability unknown to the law.’’ T. Pluck- ture’’ to which Hamilton was referring is Con- nett, Taswell–Langmead’s English Constitutional gress can one make sense of his remark that the History 585 (11th ed. 1960); cf. INS v. Chadha, qualifications of voters as well as Congressmen 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 are ‘‘fixed in the Constitution’’ and ‘‘unalterable (1983). This history was relevant to Powell by the legislature.’’ Hamilton surely knew that (which dealt with the grounds on which one the States or the people of the States control House of Congress could exclude a Member- eligibility for the franchise. See Art. I, § 2, cl. 1. elect), but it is not relevant to this case. 514 U.S. 888 U.S. TERM LIMITS, INC. v. THORNTON 1895 Cite as 115 S.Ct. 1842 (1995) ness of the majority’s evidence that the the exclusivity provision—the Committee de- States and the people of the States also lack leted the exclusivity provision itself. In the this power. document that has come down to us, all the 1 words after the colon are crossed out. Ibid. To the extent that the records from the The majority speculates that the exclusivi- Philadelphia Convention itself shed light on ty provision may have been deleted as super- this case, they tend to hurt the majority’s fluous. See ante, at 1860, n. 27.19 But the case. The only evidence that directly bears same draft that contained the exclusivity lan- on the question now before the Court comes guage in the House Qualifications Clause from the Committee of Detail, a five-member contained no S such language in the Senate body that the Convention charged with the 888 Qualifications Clause. See 2 Farrand 141. crucial task of drafting a Constitution to Thus, the draft appears to reflect a deliber- reflect the decisions that the Convention had reached during its first two months of work. ate judgment to distinguish between the A document that Max Farrand described as House qualifications and the Senate qualifica- ‘‘[a]n early, perhaps the first, draft of the tions, and to make only the former exclusive. committee’s work’’ survived among the pa- If so, then the deletion of the exclusivity pers of George Mason. 1 Farrand xxiii, n. provision indicates that the Committee ex- 36. The draft is in the handwriting of pected neither list of qualifications to be ex- S 887Edmund Randolph, the chairman of the clusive. Committee, with emendations in the hand of The majority responds that the absence of John Rutledge, another member of the Com- any exclusivity provision in the Committee’s mittee. As Professor Farrand noted, ‘‘[e]ach draft of the Senate Qualifications Clause item in this document TTT is either checked merely reflected the fact that ‘‘senators, un- off or crossed out, showing that it was used in the preparation of subsequent drafts.’’ 2 like Representatives, would not be chosen by id., at 137, n. 6; see also W. Meigs, The popular election.’’ Ante, at 1861, n. 27. I am Growth of the Constitution in the Federal perfectly prepared to accept this explanation: Convention of 1787, pp. I–IX (1900) (provid- The drafter(s) may well have thought that ing a facsimile of the document). state legislatures should be prohibited from constricting the people’s choices for the The document is an extensive outline of the Constitution. Its treatment of the Na- House of Representatives, but that no exclu- tional Legislature is divided into two parts, sivity provision was necessary on the Senate one for the ‘‘House of Delegates’’ and one for side because state legislatures would already the Senate. The Qualifications Clause for have unfettered control over the appointment the House of Delegates originally read as of Senators. To accept this explanation, follows: ‘‘The qualifications of a delegate however, is to acknowledge that the exclusiv- shall be the age of twenty five years at least. ity provision in the Committee’s draft of the and citizenship: and any person possessing House Qualifications Clause was not thought these qualifications may be elected except to be mere surplusage. It is also to acknowl- [blank space].’’ Id., at II (emphasis added). edge that the Senate Qualifications Clause in The drafter(s) of this language apparently the Committee’s draft—‘‘the qualification of a contemplated that the Committee might want senator shall be the age of 25 years at least: to insert some exceptions to the exclusivity citizenship in the united states: and property provision. But rather than simply deleting to the amount of [blank space],’’ 2 Farrand the word ‘‘except’’—as it might have done if 141—did not carry any implicit connotation it had decided to have no exceptions at all to of exclusivity. In short, the majority’s own

19. The majority also argues that in any event, the to contain an exclusivity provision. The surviv- views of the members of the Committee ‘‘tel[l] us ing records suggest that the members of the little about the views of the Convention as a Committee of Detail did not understand the final whole.’’ Ante, at 1860, n. 27. But our task is Qualifications Clauses to be exclusive, and the simply to determine whether at the time of the majority offers no reason to think that their un- framing, the language of the Qualifications derstanding of the language was unusual for Clauses would have been commonly understood their time. 1896 115 SUPREME COURT REPORTER 514 U.S. 888 explanation for the difference between the one of the recurring themes of the debate two Qualifications Clauses in the Commit- over this provision was that if congressional tee’s draft is fundamentally at odds with the compensation were left up to the States, expressio unius argument on which the ma- parsimonious States might reduce salaries so jority rests its holding. low that only incapable people would be will- 2 ing to serve in Congress.

Unable to glean from the Philadelphia As the majority stresses, some delegates Convention any direct evidence that helps its to the Philadelphia Convention did argue position, the majority seeks signs of the that leaving congressional compensation up Framers’ unstated intent in the Framers’ to the various States would give Members of comments about four other constitutional Congress ‘‘an improper dependence’’ upon provisions. See ante, at 1857–S 1859 (citing 889 the States. Id., at 216 (remarks of James Art. I, § 2, cl. 1; § 4, cl. 1; § 5, cl. 1; and Madison); ante, at 1857–1858. These § 6, cl. 1). The majority infers from these S delegates presumably did not want state provisions that the Framers wanted ‘‘to mini- 890 legislatures to be able to tell the members of mize the possibility of state interference with Congress from their State, ‘‘Vote against Bill federal elections.’’ Ante, at 1857. But even A or we will slash your salary’’; such a if the majority’s reading of its evidence were power would approximate a power of recall, correct, the most that one could infer is that which the Framers denied to the States the Framers did not want state legislatures when they specified the terms of Members of to be able to prescribe qualifications that Congress. The Framers may well have would narrow the people’s choices. See su- thought that state power over salary, like pra, at 1893–1896. However wary the Fram- state power to recall, would be inconsistent ers might have been of permitting state leg- with the notion that Congress was a national islatures to exercise such power, there is legislature once it assembled. But state absolutely no reason to believe that the power over initial eligibility requirements Framers feared letting the people themselves does not raise the same concerns: It was exercise this power. Cf. The Federalist No. perfectly coherent for the Framers to leave 52, at 326 (Madison) (‘‘It cannot be feared selection matters to the state level while that the people of the States will alter this providing for Members of Congress to draw [electoral-qualification] part of their constitu- a federal salary once they took office. Thus, tions in such a manner as to abridge the the Compensation Clause seems wholly irrel- rights secured to them by the federal Consti- evant; contrary to the majority’s suggestion, tution’’). see ante, at 1859, n. 21, it does not address In any event, none of the provisions cited elections at all. by the majority is inconsistent with state power to add qualifications for congressional Second, the majority gives passing men- office. First, the majority cites the constitu- tion to the Elector–Qualifications Clause of tional requirement that congressional sala- Article I, § 2, which specifies that in each ries be ‘‘ascertained by Law, and paid out of State, the voters in House elections ‘‘shall the Treasury of the United States.’’ Art. I, have the qualifications requisite for Electors § 6, cl. 1. Like the Qualifications Clauses of the most numerous Branch of the State themselves, however, the salary provision can Legislature.’’ But the records of the Phila- be seen as simply another means of protect- delphia Convention provide no evidence for ing the competence of the National Legisla- the majority’s assertion that the purpose of ture. As reflected in the majority’s own this Clause was ‘‘to prevent discrimination evidence, see ante, at 1857–1858; see also 1 against federal electors.’’ See ante, at 20 Farrand 373 (remarks of James Madison), 1857. S 891In fact, the Clause may simply

20. The majority inaccurately reports James Mad- of ‘‘allowing States to differentiate between the ison’s explanation of the Elector–Qualifications qualifications for state and federal electors.’’ Clause in The Federalist No. 52. Madison nei- See ante, at 1857. Instead, he addressed the ther mentioned nor addressed the consequences problems that would have arisen if the Constitu- 514 U.S. 892 U.S. TERM LIMITS, INC. v. THORNTON 1897 Cite as 115 S.Ct. 1842 (1995) have been a natural concomitant of one of the tions Clauses, and not to encompass whatev- Framers’ most famous decisions. At the er requirements States might add on their Convention, there was considerable debate own. See Nixon v. United States, 506 U.S. about whether Members of the House of 224, 237, 113 S.Ct. 732, 740, 122 L.Ed.2d 1 Representatives should be selected by the (1993) (dictum) (asserting that the context of state legislatures or directly by the voters of § 5 demonstrates that ‘‘the word ‘[q]ualifica- each State. Taken as a whole, the first tions’ TTT was of a precise, limited nature’’ Clause of Article I, § 2—including the and referred only to the qualifications previ- elector-qualifications provision—implements ously ‘‘set forth in Art. I, § 2’’). The Fram- the Framers’ decision. It specifies that the ers had deemed the constitutional qualifica- Representatives from each State are to be tions essential to protect the competence of chosen by the State’s voters (that is, the Congress, and hence the national interest. people eligible to participate in elections for It is quite plausible that the Framers would the most numerous branch of the state legis- have wanted each House to make sure that lature). its Members possessed these qualifications, Third, the majority emphasizes that under but would have left it to the States to enforce Article I, § 5, ‘‘[e]ach House [of Congress] whatever qualifications were imposed at the shall be the Judge of the Elections, Returns state level to protect state interests. and Qualifications of its own Members.’’ See ante, at 1855, 1858–1859, 1864. There was But even if this understanding of § 5 is no recorded discussion of this provision in incorrect, I see nothing odd in the notion that the Philadelphia Convention, and it appears a House of Congress might have to consider simply to adopt the practice of England’s state law in judging the ‘‘Qualifications’’ of its Parliament. See n. 18, supra. According to Members. In fact, § 5 itself refutes the the majority, however, § 5 implies S 892that majority’s argument. Because it generally is the Framers could not have intended state state law that determines what is necessary law ever to ‘‘provide the standard for judging to win an election and whether any particular a Member’s eligibility.’’ Ante, at 1859. ballot is valid, each House of Congress clear- My conclusion that States may prescribe ly must look to state law in judging the eligibility requirements for their Members of ‘‘Elections’’ and ‘‘Returns’’ of its Members. Congress does not necessarily mean that the It would hardly be strange if each House had term ‘‘Qualifications,’’ as used in Article I, to do precisely the same thing in judging § 5, includes such state-imposed require- ‘‘Qualifications.’’ Indeed, even on the majori- ments. One surely could read the term sim- ty’s understanding of the Constitution, at the ply to refer back to the requirements that time of the framing all ‘‘Qualifications’’ ques- the Framers had just listed in the Qualifica- tions that turned on issues of citizenship

tion had assigned control over the qualifications suggest that the Elector–Qualifications Clause of voters in House elections to the state legisla- bars the people of a State from delegating their tures rather than to the people of each State. It control over voter qualifications to the state legis- was such an arrangement that, in Madison’s lature. The Clause itself refutes this reading; if a view, ‘‘would have rendered too dependent on state constitution permits the state legislature to the State governments that branch of the federal set voter qualifications, and if eligibility for the government which ought to be dependent on the franchise in the State therefore turns on statuto- people alone.’’ The Federalist No. 52, at 326; cf. ry rather than constitutional law, federal electors ante, at 1857. The Elector–Qualifications Clause in the State still must meet the same qualifica- avoided this problem because the various state tions as electors for the most numerous branch constitutions controlled who could vote in elec- of the state legislature. Madison could not possi- tions for the most numerous branch of the state bly have disagreed with this understanding of the legislature, and no state government could alter Clause. Instead, he was simply explaining why, these requirements unless the people of the State when it came to voter qualifications for House (through the state constitution) decided to let it elections, the Framers had not followed the mod- do so. See The Federalist No. 52, at 326. el of Article I, § 3, cl. 1, and vested ultimate Though one obviously could uphold the action control with the state legislatures (regardless of of the people of Arkansas without reaching this what the people of a State might provide in their issue, Madison’s comments should not be read to state constitutions). 1898 115 SUPREME COURT REPORTER 514 U.S. 892 would have been governed by state law. See S 894But the Framers provided for congres- supra, at 1887–1888. sional override only where they trusted Con- gress more than the States. Even respon- S 893More generally, there is no basis for the dents acknowledge that ‘‘the primary reason’’ majority’s assertion that the Framers would for the ‘‘make or alter’’ power was to enable not have charged ‘‘federal tribunals’’ with the Congress to ensure that States held elections task of ‘‘judging TTT questions concerning in the first place. See Tr. of Oral Arg. 51; rights which depend on state law.’’ See ante, see also supra, at 1883, and n. 10. The at 1859. Cases involving questions of federal Framers did trust Congress more than the law hardly exhaust the categories of cases States when it came to preserving the Feder- that the Framers authorized the federal al Government’s own existence; to advance courts to decide. See Art. III, § 2, cl. 1. this interest, they had to give Congress the The founding generation, moreover, seemed capacity to prescribe both the date and the to assign relatively little importance to the mechanics of congressional elections. As dis- constitutional grant of jurisdiction over ‘‘all cussed above, however, the Framers trusted Cases TTT arising under this Constitution, the States more than Congress when it came the Laws of the United States, and Treaties to setting qualifications for Members of Con- made TTT under their Authority.’’ Ibid. The First Congress never even implemented this gress. See supra, at 1890. Indeed, the ma- jurisdictional grant at the trial level; it was jority itself accepts this proposition. See not until 1875 that Congress ‘‘revolutionized ante, at 1869 (acknowledging that the Fram- the concept of the federal judiciary’’ by giv- ers were ‘‘particularly concerned’’ about con- ing federal courts broad jurisdiction over gressional power to set qualifications). suits arising under federal law. See P. Ba- To judge from comments made at the state tor, D. Meltzer, P. Mishkin, & D. Shapiro, ratifying conventions, Congress’ ‘‘make or al- Hart and Wechsler’s The Federal Courts and ter’’ power was designed to serve a coordina- the Federal System 962 (3d ed. 1988). By tion function in addition to ensuring that the contrast, the founding generation thought it States had at least rudimentary election important to implement immediately the con- laws. For instance, George Nicholas argued stitutional grant of diversity jurisdiction, in at the Virginia Convention that if regulation which the rules of decision generally come of the time of congressional elections had entirely from state law. See Judiciary Act of been left exclusively to the States, ‘‘there 1789, 1 Stat. 73, 78, 92; Erie R. Co. v. might have been as many times of choosing Tompkins, 304 U.S. 64, 77–80, 58 S.Ct. 817, as there are States,’’ and ‘‘such intervals 822–823, 82 L.Ed. 1188 (1938). might elapse between the first and last elec- The fourth and final provision relied upon tion, as to prevent there being a sufficient by the majority is the Clause giving Con- number to form a House.’’ 9 Documentary gress the power to override state regulations History of the Ratification of the Constitu- of ‘‘[t]he Times, Places and Manner of hold- tion 920 (J. Kaminski and G. Saladino eds. ing [congressional] Elections.’’ Art. I, § 4, 1990). For this reason too, if the National cl. 1. From the fact that the Framers gave Legislature lacked the ‘‘make or alter’’ pow- Congress the power to ‘‘make or alter’’ these er, ‘‘it might happen that there should be no state rules of election procedure, the majori- Congress[,] TTT and this might happen at a ty infers that the Framers would also have time when the most urgent business ren- wanted Congress to enjoy override authority dered their session necessary.’’ Ibid.; cf. 2 with respect to any matters of substance that Elliot 535 (remarks of Thomas McKean at were left to the States. See ante, at 1858. the Pennsylvania ratifying convention) (de- As Congress enjoys no ‘‘make or alter’’ pow- fending § 4 on the ground that congressional ers in this area, the majority concludes that elections should be ‘‘held on the same day the Framers must not have thought that throughout the United States, to prevent cor- state legislatures would be able to enact ruption or S 895undue influence’’). Again, how- qualifications laws. ever, the desire to coordinate state election 514 U.S. 897 U.S. TERM LIMITS, INC. v. THORNTON 1899 Cite as 115 S.Ct. 1842 (1995) procedures did not require giving Congress qualifications so high that no candidate could power over qualifications laws. meet them, and Congress would be power- The structure of the Constitution also un- less to do anything about it. Ante, at 1858– dermines the majority’s suggestion that it 1859. would have been bizarre for the Framers to Even if the majority were correct that give Congress supervisory authority over Congress could not nullify impossible qualifi- state time, place, and manner regulations but cations, however, the Constitution itself pro- not over state qualifications laws. Although scribes such state laws. The majority surely the Constitution does set forth a few nation- would concede that under the Framers’ Con- wide disqualifications for the office of Presi- stitution, each state legislature had an affir- dential elector, see Art. II, § 1, cl. 2 (‘‘no mative duty to appoint two people to the Senator or Representative, or Person holding Senate. See Art. I, § 3, cl. 1 (‘‘The Senate of an Office of Trust or Profit under the United the United States shall be composed of two States, shall be appointed an Elector’’), no Senators from each State, chosen by the one contends that these disqualifications im- Legislature thereof TTT’’ (emphasis added)); plicitly prohibit the States from adding any cf. Art. I, § 3, cl. 2 (‘‘if Vacancies happen by other eligibility requirements; instead, Arti- Resignation, or otherwise, during the Recess cle II leaves the States free to establish of the Legislature of any State, the Execu- qualifications for their delegates to the elec- tive thereof may make temporary Appoint- toral college. See supra, at 1882–1883. ments until the next Meeting of the Legisla- Nothing in the Constitution, moreover, gives ture, which shall then fill such Vacancies’’). Congress any say over the additional eligibil- In exactly the same way that § 3 requires ity requirements that the people of the the States to send people to the Senate, § 2 States or their state legislatures may choose also requires the States to send people to the to set. Yet under Article II, ‘‘[t]he Congress House. See Art. I, § 2, cl. 1 (‘‘The House of may determine the Time of chusing the Representatives shall be composed of Mem- ElectorsTTTT’’ Art. II, § 1, cl. 4. bers chosen every second Year by the People The majority thus creates an unwarranted of the several States TTT’’); cf. Art. I, § 2, cl. divergence between Article I’s provisions for 4 (‘‘When vacancies happen in the Represen- the selection of Members of Congress and tation from any State, the Executive Authori- Article II’s provisions for the selection of ty thereof shall issue Writs of Election to fill members of the electoral college. Properly such Vacancies’’). understood, the treatment of congressional The majority apparently is concerned that elections in Article I parallels the treatment (on its reading of the ‘‘make or alter’’ power) of Presidential elections in Article II. Un- Congress would not be able to enforce the der Article I as under Article II, the States constitutional proscription on impossible and the people of the States do enjoy the qualifications; enforcement would instead be reserved power to establish substantive eli- relegated to the courts, the Executive gibility requirements for candidates, and Branch, or the political process. But this Congress has no power to override these re- concern is equally applicable whether one quirements. But just as Article II autho- adopts my view of the Qualifications Clauses rizes Congress to prescribe when the States or the majority’s view. Both the majority must select their Presidential electors, so and I agree that it is unconstitutional for Article I gives Congress the ultimate au- S 897States to establish impossible qualifica- thority over the times, places, and manner tions for congressional office. Both the ma- of holding congressional elections. jority and I also agree that it is theoretically

S 896The majority’s only response is that my conceivable that a State might defy this pro- reading of the Constitution would permit scription by erecting an impossible qualifica- States to use their qualification-setting power tion. Whether Congress may use its ‘‘make to achieve the very result that Congress’ or alter’’ power to override such laws turns ‘‘make or alter’’ power was designed to avoid. entirely on how one reads the ‘‘make or According to the majority, States could set alter’’ power; it has nothing to do with 1900 115 SUPREME COURT REPORTER 514 U.S. 897 whether one believes that the Qualifications S 898the power but the duty to treat the uncon- Clauses are exclusive. stitutional state law as a nullity. Thus, Con- It would not necessarily be unusual if the gress could provide the appropriate remedy Framers had decided against using Con- for the State’s defiance, simply by seating gress’ ‘‘make or alter’’ power to guard the winner of the election. against state laws that disqualify everyone It follows that the situation feared by the from service in the House. After all, al- majority would arise only if the State refused though this power extended to the times and to hold an election in the first place, on the manner of selecting Senators as well as Rep- ground that no candidate could meet the resentatives, it did not authorize Congress to impossible qualification. But Congress un- pick the Senators from a State whose legisla- questionably has the power to override such ture defied its constitutional obligations and a refusal. Under the plain terms of § 4, refused to appoint anyone. This does not Congress can make a regulation providing mean that the States had no duty to appoint for the State to hold a congressional election Senators, or that the States retained the at a particular time and place, and in a power to destroy the Federal Government by particular manner.22 the simple expedient of refusing to meet this 3 duty. It merely means that the Framers did In discussing the ratification period, the 21 not place the remedy with Congress. majority stresses two principal data. One of But the flaws in the majority’s argument these pieces of evidence is no evidence at go deeper. Contrary to the majority’s basic all—literally. The majority devotes consid- premise, Congress can nullify state laws that erable space to the fact that the recorded establish impossible qualifications. If a State ratification debates do not contain any affir- actually holds an election and only after- mative statement that the States can supple- wards purports to disqualify the winner for ment the constitutional qualifications. See failure to meet an impossible condition, Con- ante, at 1859–1860. For the majority, this gress certainly would not be bound by the void is ‘‘compelling’’ evidence that ‘‘unques- purported disqualification. It is up to each tionably reflects the Framers’ common un- House of Congress to judge the ‘‘[q]ualifica- derstanding that States lacked that power.’’ tions’’ of its Members for itself. See Art. I, Ante, at 1859, 1860. The majority reasons § 5, cl. 1. Even if this task includes the that delegates at several of the ratifying responsibility of judging qualifications im- conventions attacked the Constitution for posed by state law, see supra, at 1897–1898, failing to require Members of Congress to 23 Congress obviously would have not only rotate out of office. If S 899supporters of

21. Likewise, the Constitution requires the States dropped without discussion a portion of the orig- to appoint Presidential electors, Art. II, § 1, cl. 2, inal Randolph Resolutions calling for Members but it does not provide for any congressional of the House of Representatives ‘‘to be incapable override if the States refuse to do so (or if the of re-election for the space of [blank space] after States set impossibly high qualifications and then the expiration of their term of service.’’ 1 Far- announce that no one meets them). rand 20. This provision, which at a minimum would have barred all Members of the House 22. Even if there is anything left of the majority’s from serving consecutive terms, was abandoned argument on this point, it would still have no without objection when the Convention voted to bearing on whether the Framers intended to require House Members to stand for election preclude the people of each State from supple- every three years. See id., at 214–217; see also menting the constitutional qualifications. Just as id., at 362 (opting for 2–year terms instead). the Framers had no fear that the people of a Subsequently, indeed, some members of the Con- State would destroy congressional elections by vention appeared to be unaware that a rotation entirely disenfranchising themselves, see The requirement had ever been proposed. See 2 id., Federalist No. 52, at 326, so the Framers surely at 120 (remarks of Gouverneur Morris). had no fear that the people of the States would destroy congressional elections by entirely dis- The majority properly does not cite the omis- qualifying all candidates. sion of this nationwide rotation requirement as evidence that the Framers meant to preclude 23. As the majority notes, see ante, at 1871, and individual States from adopting rotation require- 1859, n. 22, the Philadelphia Convention had ments of their own. Just as individual States 514 U.S. 901 U.S. TERM LIMITS, INC. v. THORNTON 1901 Cite as 115 S.Ct. 1842 (1995) ratification had believed that the individual about ‘‘the lack of state control over the States could supplement the constitutional qualifications of the elected,’’ whether ‘‘ex- qualifications, the majority argues, they plicitly’’ or otherwise. See ante, at 1856. would have blunted these attacks by pointing It is true that The Federalist No. 52 con- out that rotation requirements could still be trasts the Constitution’s treatment of the added State by State. See ante, at 1860. qualifications of voters in elections for the But the majority’s argument cuts both House of Representatives with its treatment ways. The recorded ratification debates also of the qualifications of the Representatives contain no affirmative statement that the themselves. As Madison noted, the Framers States cannot supplement the constitutional did not specify any uniform qualifications for qualifications. While ratification was being the franchise in the Constitution; instead, debated, the existing rule in America was they simply incorporated each State’s rules that the States could prescribe eligibility re- about eligibility to vote in elections for the quirements for their delegates to Congress, most numerous branch of the state legisla- see n. 3, supra, even though the Articles of ture. By contrast, Madison continued, the Confederation gave Congress itself no power Framers chose to impose some particular qualifications that all Members of the House to impose such qualifications. If S 900the Fed- eral Constitution had been understood to de- had to satisfy. But while Madison did say prive the States of this significant power, one that the qualifications of the elected were might well have expected its opponents to ‘‘more susceptible of uniformity’’ than the seize on this point in arguing against ratifica- qualifications of electors, The Federalist No. tion. 52, at 326, he did not say that the Constitu- tion S 901prescribes anything but uniform mini- The fact is that arguments based on the mum qualifications for congressmen. That, absence of recorded debate at the ratification after all, is more than it does for congression- conventions are suspect, because the surviv- al electors. ing records of those debates are fragmen- Nor do I see any reason to infer from The tary. We have no records at all of the Federalist No. 52 that the Framers intended debates in several of the conventions, 3 Doc- to deprive the States of the power to add to umentary History of the Ratification of the these minimum qualifications. Madison did Constitution 7 (M. Jensen ed. 1978), and only note that the existing state constitutions de- spotty records from most of the others, see fined the qualifications of ‘‘the elected’’—a ibid.; 1 id., at 34–35; 4 Elliot 342; Hutson, phrase that the essay used to refer to Mem- The Creation of the Constitution: The Integ- bers of Congress—‘‘less carefully and prop- rity of the Documentary Record, 65 Texas erly’’ than they defined the qualifications of L.Rev. 1, 21–23 (1986). voters. But Madison could not possibly have If one concedes that the absence of rele- been rebuking the States for setting unduly vant records from the ratification debates is high qualifications for their representatives not strong evidence for either side, then the in Congress, because they actually had estab- majority’s only significant piece of evidence lished only the sketchiest of qualifications. from the ratification period is The Federalist At the time that Madison wrote, the various No. 52. Contrary to the majority’s assertion, state constitutions generally provided for the however, this essay simply does not talk state legislature to appoint the State’s dele-

could extend the vote to women before the adop- Amendment was proposed); Harman v. Forsseni- tion of the Nineteenth Amendment, could prohib- us, 380 U.S. 528, 539, 85 S.Ct. 1177, 1184, 14 it poll taxes before the adoption of the Twenty- L.Ed.2d 50 (1965) (noting that by the time the fourth Amendment, and could lower the voting Twenty-fourth Amendment was proposed, ‘‘only age before the adoption of the Twenty-sixth five States retained the poll tax as a voting re- Amendment, so the Framers’ decision not to im- quirement’’); Congressional Research Service, pose a nationwide limit on congressional terms The Constitution of the United States of America: did not itself bar States from adopting limits of Analysis and Interpretation 1571 (1973) (report- their own. See, e.g., Ga. Const. of 1877, § 2–602 ing that 11 States had adopted women’s suffrage (adopted Aug. 3, 1943) (reducing voting age to 18 by the time the Nineteenth Amendment was pro- nearly three decades before the Twenty-sixth posed). Cf. ante, at 1871, and n. 50. 1902 115 SUPREME COURT REPORTER 514 U.S. 901 gates to the Federal Congress.24 Four state trary, the age and citizenship qualifications constitutions had added a term-limits provi- set out in the Federal Constitution are con- sion that tracked the one in the Articles of siderably higher than the corresponding Confederation,25 and some of the constitu- qualifications contained in the state constitu- tions also specified that people who held tions that were then in force. At the time, certain salaried offices under the United no state constitution required members of States were ineligible to represent the State the lower house of the state legislature to be in Congress.26 But only two state constitu- more than 21 years old, and only two re- tions had prescribed any other quired members of the upper house to be 30. 27 S 902qualifications for delegates to Congress. See N.H. Const. of 1784, Pt. II, in 4 Thorpe In this context, when Madison wrote that the 2460; S.C. Const. of 1778, Art. XII, in 6 state constitutions defined the qualifications Thorpe 3250. Many S 903States, moreover, of Members of Congress ‘‘less carefully and permitted naturalized aliens to take seats in properly’’ than they defined the qualifications the state legislature within one or two years of voters, he could only have meant that the of becoming citizens. See Kettner, Develop- existing state qualifications did not do ment of American Citizenship, at 214–219. enough to safeguard Congress’ competence: The majority responds that at the time of The state constitutions had not adopted the the framing, most States imposed property age, citizenship, and inhabitancy require- qualifications on members of the state legis- ments that the Framers considered essential. lature. See ante, at 1857, n. 18. But the fact Madison’s comments readily explain why the that the Framers did not believe that a uni- Framers did not merely incorporate the state form minimum property requirement was qualifications for Congress. But they do not necessary to protect the competence of Con- imply that the Framers intended to withdraw gress surely need not mean that the Framers from the States the power to supplement the intended to preclude States from setting list of qualifications contained in the Federal their own property qualifications. Constitution.28 In fact, the constitutional text supports the Though The Federalist No. 52 did not contrary inference. As the majority ob- address this question, one might wonder why serves, see ibid., and ante, at 1865, n. 35, at the Qualifications Clauses did not simply in- the time of the framing some States also corporate the existing qualifications for mem- imposed religious qualifications on state leg- bers of the state legislatures (as opposed to islators. The Framers evidently did not delegates to Congress). Again, however, the want States to impose such qualifications on Framers’ failure to do so cannot be taken as federal legislators, for the Constitution spe- an implicit criticism of the States for setting cifically provides that ‘‘no religious Test shall unduly high entrance barriers. To the con- ever be required as a Qualification to any

24. See Del. Const. of 1776, Art. 11, in 1 Thorpe 26. Md. Const. of 1776, Form of Government, Art. 564; Md. Const. of 1776, Form of Government, XXVII, in 3 Thorpe 1695; N.H. Const. of 1784, Art. XXVII, in 3 Thorpe 1695; Mass. Const. of Pt. II, in 4 Thorpe 2467; Pa. Const. of 1776, 1780, Pt. 2, Ch. IV, in 3 Thorpe 1906; N.H. Frame of Government, § 11, in 5 Thorpe 3085. Const. of 1784, Pt. II, in 4 Thorpe 2467; N.Y. Const. of 1777, Art. XXX, in 5 Thorpe 2634–2635; 27. See Md. Const. of 1776, Art. XXVII, in 3 N.C. Const. of 1776, Form of Government, Art. Thorpe 1695; N.H. Const. of 1784, Pt. II, in 4 XXXVII, in 5 Thorpe 2793; Pa. Const. of 1776, Thorpe 2467. Frame of Government, § 11, in 5 Thorpe 3085; 28. The majority suggests that I have overlooked S.C. Const. of 1778, Art. XXII, in 6 Thorpe 3253; Madison’s observation that subject to the ‘‘rea- Va. Const. of 1776, in 7 Thorpe 3817. sonable limitations’’ spelled out in the House Qualifications Clause, the Constitution left the 25. Md. Const. of 1776, Form of Government, Art. House’s door ‘‘open to merit of every descrip- XXVII, in 3 Thorpe 1695; N.H. Const. of 1784, tion.’’ See ante, at 1857, n. 18; see also ante, at Pt. II, in 4 Thorpe 2467; N.C. Const. of 1776, 1857 (quoting a similar passage from The Feder- Art. XXXVII, in 5 Thorpe 2793; Pa. Const. of alist No. 57). As discussed above, however, such 1776, Frame of Government, § 11, in 5 Thorpe statements do not advance the majority’s case. 3085. See supra, at 1891–1892. 514 U.S. 905 U.S. TERM LIMITS, INC. v. THORNTON 1903 Cite as 115 S.Ct. 1842 (1995) Office or public Trust under the United 29–31, 13 S.Ct., at 8–9. Though acknowl- States.’’ Art. VI, cl. 3. Both the context 29 edging that in subsequent years ‘‘most of the and the plain language of the Clause show States adopted the general ticket system,’’ that it bars the States as well as the Federal id., at 32, 13 S.Ct., at 9, the Court nonethe- Government from imposing religious disqual- less found this history ‘‘decisive’’ proof of the ifications on federal offices. But the only constitutionality of the district method, id., at reason for extending the Clause to the States 36, 13 S.Ct., at 11. Thus, the Court resolved would be to protect Senators and Represen- its doubts in favor of the state law, ‘‘the tatives from state-imposed religious qualifica- contemporaneous practical exposition of the tions; I know of no one else who holds a Constitution being too strong and obstinate ‘‘public Trust under the United States’’ yet to be shakenTTTT’’ Id., at 27, 13 S.Ct., at 7. who might be subject to state disqualifica- tions. If the expressio unius maxim cuts in Here, too, state practice immediately after any direction in this case, then, it under- the ratification of the Constitution refutes mines the majority’s position: The Framers’ the majority’s suggestion that the Qualifica- prohibition on state-imposed religious tions Clauses were commonly understood as disqualSifications904 for Members of Congress being exclusive. Five States supplemented suggests that other types of state-imposed the constitutional disqualifications in their disqualifications are permissible. See Rotun- very first election laws, and the surviving da, Rethinking Term Limits for Federal records suggest that the legislatures of these Legislators in Light of the Structure of the States considered and rejected the interpre- Constitution, 73 Ore.L.Rev. 561, 574 (1994). tation of the Constitution that the majority 4 adopts today.

More than a century ago, this Court was S 905As the majority concedes, the first Vir- asked to invalidate a Michigan election law ginia election law erected a property qualifi- because it called for Presidential electors to cation for Virginia’s contingent in the Feder- be elected on a district-by-district basis rath- al House of Representatives. See Virginia er than being chosen by ‘‘the State’’ as a Election Law (Nov. 20, 1788), in 2 Docmenta- whole. See Art. II, § 1, cl. 2. Conceding ry History of the First Federal Elections, that the Constitution might be ambiguous on 1788–1790, pp. 293, 294 (G. DenBoer ed. this score, the Court asserted that ‘‘where 1984) (hereinafter First Federal Elections) there is ambiguity or doubt, or where two (restricting possible candidates to ‘‘freehold- views may well be entertained, contempora- er[s]’’). What is more, while the Constitution neous and subsequent practical construc- merely requires representatives to be inhab- tion[s] are entitled to the greatest weight.’’ itants of their State, the legislatures of five of McPherson v. Blacker, 146 U.S., at 27, 13 the seven States that divided themselves into S.Ct., at 7. The Court then described the districts for House elections 30 added that district-based selection processes used in 2 of representatives also had to be inhabitants of the 10 States that participated in the first the district that elected them. Three of Presidential election in 1788, 3 of the 15 these States adopted durational residency re- States that participated in 1792, and 5 of the quirements too, insisting that representatives 16 States that participated in 1796. Id., at have resided within their districts for at least

29. The immediately preceding portion of the pute that the Framers wanted to let States decide Clause requires not only ‘‘[t]he Senators and for themselves whether to use district elections in Representatives before mentioned’’ but also ‘‘the selecting Members of the House of Representa- Members of the several State Legislatures, and tives. The Framers fully expected that in some all executive and judicial Officers, both of the States each Member of the House would be cho- United States and of the several States,’’ to take sen by the people of the whole State, while in an ‘‘Oath or Affirmation’’ to support the Consti- other States each Member would be directly ac- tution. Art. VI, cl. 3. countable only to the people of a single district. 30. Despite the majority’s emphasis on the Fram- See, e.g., 14 Papers of Thomas Jefferson 3 (J. ers’ supposed desire for uniformity in congres- Boyd ed. 1958) (letter from Madison to Jefferson, sional elections, even the majority does not dis- Oct. 8, 1788). 1904 115 SUPREME COURT REPORTER 514 U.S. 905 a year (or, in one case, three years) before ter ‘‘considerable debate,’’ the House ap- being elected.31 proved the committee’s version of the fourth article by a vote of 89 to 72. Ibid. But the S 906In an attempt to neutralize the signifi- cance of the district residency requirements, State Senate approved a district residency respondent Hill asserts that ‘‘there is no amendment, 1 First Federal Elections 502, evidence that any state legislature focused, and the House then voted to retain it, id., at when it created these requirements, on the 504. fact that it was adding to the constitutional Although we have no record of the legisla- qualifications.’’ Brief for Respondents Bob- tive debates over Virginia’s election law, a bie E. Hill et al. 20. But this claim is simply letter written by one of the members of the false. House of Delegates during the relevant peri- In Massachusetts, for instance, the legisla- od indicates that in that State, too, the legis- ture charged a committee with drafting a lature considered the possible constitutional report on election methods. The fourth arti- objection to additional disqualifications. In cle of the resulting report called for the State that letter, Edward Carrington (an opponent to be divided into eight districts that would of the district residency requirement) ex- each elect one representative, but did not pressed his view that the requirement ‘‘may require that the representatives be residents exceed the powers of the Assembly,’’ S 907but of the districts that elected them. Joint acknowledged that there was ‘‘no prospect of Committee Report (Nov. 4, 1788), in 1 First its being struck out’’ because Federalists as Federal Elections 481. When the members well as Anti–Federalists at least professed to of the State House of Representatives dis- ‘‘think it right.’’ 2 id., at 367 (letter from cussed this report, those who proposed add- Carrington to Madison, Nov. 9–10, 1788). ing a district residency requirement were Carrington was correct about the views of his met with the claim that the Federal Constitu- colleagues: By a vote of 80 to 32, the House tion barred the legislature from specifying of Delegates rejected a motion to delete the additional qualifications. See Massachusetts added qualifications, while a similar motion in Centinel (Nov. 8, 1788) (reporting proceed- the State Senate lost by a vote of 12 to 3. ings), in 1 First Federal Elections 489. Af- Id., at 287, 293.32

31. See Georgia Election Law (Jan. 23, 1789) that he might find it harder to win election in his (restricting representatives from each district to own district than in certain other areas of the ‘‘resident[s] of three years standing in the dis- State. They believed that if Madison won the trict’’), in 2 First Federal Elections 456, 457; popular vote in one of those other districts, the Maryland Election Law (Dec. 22, 1788) (simple House of Representatives could seat him on the district residency requirement), in 2 First Feder- theory that States cannot add to the constitution- al Elections 136, 138; Massachusetts Election al qualifications. See 11 Papers of James Madi- Resolutions (Nov. 20, 1788) (same), in 1 First son 378–379 (R. Rutland & C. Hobson eds. 1977) Federal Elections 508, 509 (M. Jensen & R. (letter from Carrington to Madison, Dec. 2, Becker eds. 1976); North Carolina Election Law 1788). Other advisers, however, warned that the (Dec. 16, 1789) (requiring the person elected people of Virginia might not share this under- from each district to have been ‘‘a Resident or standing of the Constitution. As Alexander Inhabitant of that Division for which he is elect- White wrote in a letter to Madison: ed, during the Space or Term of one Year before, and at the Time of Election’’), in 4 First Federal ‘‘Some Gentlemen suppose you may be elected in Elections 347; Virginia Election Law (Nov. 20, other Districts, and that Congress would disre- 1788) (requiring each candidate to have been ‘‘a gard the Act which requires Residence in a par- bona fide resident for twelve months within such ticular District. I will not undertake to decide District’’), in 2 First Federal Elections 293, 294. that question, but this I know, such a determina- Upon being admitted to the Union in 1796, Ten- tion would afford much ground of clamour, and nessee also required its Members in the Federal enable the opposers of the Government to in- House of Representatives to have been Tennessee flame the Minds of the People beyond anything residents for three years and district residents for which has yet happened.’’ Id., at 380 (Dec. 4, one year before their election. Act of Apr. 20, 1788). 1796, ch. 10, in Laws of the State of Tennessee Madison himself apparently never endorsed the 81 (1803). idea that he should test the district residency requirement. Instead, he ran from his own dis- 32. After the Virginia Legislature had enacted this trict (where he overcame a stiff challenge from bill, some of James Madison’s friends suggested another future President, James Monroe). 514 U.S. 909 U.S. TERM LIMITS, INC. v. THORNTON 1905 Cite as 115 S.Ct. 1842 (1995) The surviving records from Maryland and States had considered district residency re- Georgia are less informative, but they, too, quirements necessary for the success of a show that the legislatures of those States district election system, but had agreed with gave special attention to the district residen- the majority that the Constitution prohibited cy requirements that they enacted.33 Out of them from supplementing the constitutional the five original S 908States that adopted dis- list of qualifications, then they simply would trict residency requirements, in fact, only in have rejected the district system and used North Carolina were the records so poor that statewide elections. After all, the majority it is impossible to draw any inferences about deems district residency requirements just whether the legislature gave careful atten- as unconstitutional as other added qualifica- tion to the implications of the requirement.34 tions. See ante, at 1853.

S 909The majority asserts that ‘‘state prac- The majority’s argument also fails to ac- tice with respect to residency requirements count for the durational element of the resi- does not necessarily indicate that States be- dency requirements adopted in Georgia, lieved that they had a broad power to add North Carolina, and Virginia (and soon restrictions,’’ because the States ‘‘may simply thereafter in Tennessee). These States have viewed district residency requirements obliged Congressmen not only to be district as the necessary analog to state residency residents when elected but also to have been requirements.’’ Ante, at 1866, n. 41. This district residents for at least a year before argument fails even on its own terms. If the then. See n. 31, supra.

33. The records show that Maryland’s House of Constitution] would be unconstitutional.’’ 3 Delegates put the district residency requirement First Federal Elections 232 (Dec. 18, 1788). But to a separate vote and approved it by a margin of the State Senate took a different view, adding a 41 to 24. 2 First Federal Elections 129–130 district residency requirement when it consid- (summarizing proceedings from Dec. 3, 1788). ered the election bill. Id., at 320. The Assembly A subsequent effort to jettison the requirement then approved the requirement by a vote of 36 to lost by a vote of 39 to 28. Id., at 132–133 12, id., at 325–326 (Jan. 19, 1789), but reconsid- (summarizing proceedings from Dec. 10, 1788). ered the requirement the following day (appar- Language in Maryland’s second election law con- ently with more assemblymen in attendance). firms that the state legislature knew that it was After a sophisticated debate on the constitutional supplementing the Qualifications Clauses. The question, with some assemblymen arguing that Act of December 10, 1790, stipulated that each the district residency requirement was unconsti- candidate must ‘‘b[e] a resident of his district at tutional and others responding that the Constitu- the time of the election, and hav[e] resided there- tion merely erected minimum qualifications, the in twelve calendar months immediately before, Assembly divided evenly over the requirement: and [be] otherwise qualified according to the 28 voted in favor of it and 28 voted against it. constitution of the United States.’’ 1790 Laws of Id., at 328–335 (Jan. 20, 1789). The chairman Maryland, ch. XVI, art. VIII. broke the tie with a vote against the requirement. In Georgia, too, the State House of Assembly Id., at 335. Still, there clearly was no consensus called special attention to the district residency in the New York Assembly. What is more, some requirement. Shortly before Georgia held its of the votes against the district residency require- first federal elections, the House adopted a reso- ment may well have been cast by assemblymen lution to stress that if the top votegetter in any who simply opposed the requirement on policy district had not been ‘‘an actual resident of three grounds, as an undue restriction on the people’s years standing’’ in that district, then ‘‘such per- ability to elect nonresidents if they wanted to do son shall not be considered as eligible nor shall so. In any event, the New York Senate obviously he be commissioned.’’ 2 First Federal Elections considered the requirement constitutional. 459 (resolution of Feb. 4, 1789). There is evidence that some members of the 34. Even the experience in New York and South Pennsylvania Legislature considered the Qualifi- Carolina—the only States that opted for district cations Clauses to be exclusive. See 1 id., at elections without requiring district residency— 282–288. Of course, they also believed that § 2 does not support the majority’s position. While of Article I—which calls for Members of the the records from South Carolina are sketchy, Federal House of Representatives to be ‘‘chosen those from New York affirmatively undermine TTT by the People of the several States’’—forbade the majority’s suggestion that the Qualifications Pennsylvania to elect its representatives by dis- Clauses were commonly understood to be exclu- tricts. See id., at 283. The legislatures of the sive. When the topic was first broached in the five States that adopted district residency re- State Assembly, the assemblymen defeated a dis- quirements, who had the Pennsylvania example trict residency proposal amid comments that ‘‘to before them, disagreed with the Pennsylvania add any other qualification [to those listed in the legislators. 1906 115 SUPREME COURT REPORTER 514 U.S. 909

Finally, the majority’s argument cannot ple of the States from keeping good legisla- explain the election schemes of Maryland and tors in office, even if they wanted to do so.

Georgia. Though these States did divide S 911See G. Wood, Creation of the American themselves into congressional districts, they Republic, 1776–1787, p. 439 (1969). allowed every voter to vote for one candidate It is true that under the Articles of Con- from each S 910district. See Georgia Election federation, four States had imposed term Law (Jan. 23, 1789), in 2 First Federal Elec- limits on their delegates to Congress. See tions 456, 457; Maryland Election Law (Dec. ante, at 1866. But three of these provisions 22, 1788), in 2 First Federal Elections 136, added nothing to the limits in the Articles 138. In other words, Maryland and Georgia themselves, see Md. Const. of 1776, Form of imposed district residency requirements de- Government, Art. XXVII (echoing Article of spite permitting every voter in the State to Confederation V), in 3 Thorpe 1695; N.H. vote for every representative from the State. Const. of 1784, Pt. II (same), in 4 Thorpe Neither of these States could possibly have 2467; N.C. Const. of 1776, Art. XXXVII seen district residency requirements as the (similar), in 5 Thorpe 2793, and the other one ‘‘necessary analog’’ to anything; they im- contained only a minor variation on the pro- posed these requirements solely for their vision in the Articles, see Pa. Const. of 1776, own sake. Frame of Government, § 11, in 5 Thorpe The majority nonetheless suggests that the 3085. Indeed, though the majority says that initial election laws adopted by the States ‘‘many States imposed term limits on state actually support its position because the officers,’’ ante, at 1865–1866, it appears that States did not enact very many disqualifica- at the time of the framing only Pennsylvania tions. See ante, at 1866, n. 41. In this imposed any restriction on the reelection of context, the majority alludes to the fact that members of the state legislature, and Penn- no State imposed a religious qualification on sylvania deleted this restriction when it federal legislators, even though New Hamp- adopted a new Constitution in 1790. Com- shire continued to require state legislators to pare Pa. Const. of 1776, Frame of Govern- be Protestants and North Carolina imposed a ment, § 8, in 5 Thorpe 3084, with Pa. Const. similar requirement on people holding places of 1790, in 5 Thorpe 3092–3103; cf. Va. of trust in the State’s ‘‘civil department.’’ Const. of 1776, Form of Government (per- See ante, at 1866, n. 41, and 1865, n. 35. But haps imposing term limits on members of the the majority concedes that ‘‘Article VI of the upper house of the state legislature), in 7 Federal Constitution TTT prohibited States Thorpe 3816. It seems likely, then, that the from imposing similar qualifications on feder- failure of any State to impose term limits on al legislators.’’ Ante, at 1865, n. 35. As its senators and representatives simply re- discussed above, the constitutional treatment flected policy-based decisions against such of religious qualifications tends to undermine restrictions. rather than support the majority’s case. See The majority counters that the delegates supra, at 1902–1903. at three state ratifying conventions—in Vir- The majority also points out that no State ginia, New York, and North Carolina—‘‘pro- required its own federal representatives to posed amendments that would have required rotate out of office after serving one or more rotation.’’ Ante, at 1860; cf. ante, at 1865– terms. Ante, at 1866. At the time of the 1866, and n. 40. But the amendments pro- framing, however, such requirements were posed by both the North Carolina Conven- increasingly disfavored on policy grounds. tion and the Virginia Convention would have The advantages of incumbency were substan- imposed term limits only on the President, tially fewer then than now, and turnover in not on Members of Congress. See 4 Elliot office was naturally quite high. The per- 245 (North Carolina) (‘‘[N]o person shall be ceived advantages of term limits were there- capable of being President of the United fore smaller than they are today. But the States for more than eight years in any term perceived disadvantages were just as great: of fifteen years’’); 3 id., at 660 S 912(Virginia) Term limits prevented the States or the peo- (similar). If the majority is correct that 514 U.S. 913 U.S. TERM LIMITS, INC. v. THORNTON 1907 Cite as 115 S.Ct. 1842 (1995) these conventions also ‘‘voiced support for only with state treatment of property qualifi- term limits for Members of Congress,’’ see cations. It is true that nine of the State ante, at 1866,35 then the evidence from these Constitutions in effect at the time of the conventions supports my position rather than framing required members of the lower the majority’s: the conventions deemed it house of the state legislature to possess some necessary for the Constitution itself to im- property, see ante, at 1864–1865, n. 33, and pose term limits on the President (because that four of these Constitutions were revised no State could do that on its own), but they shortly after the framing but continued to did not think it necessary for the Constitu- impose such requirements, see ante, at 1865, tion to impose term limits on Members of Congress. This understanding at the Virgi- and n. 35. Only one State, by contrast, nia and North Carolina conventions meshes established a property qualification for the with the election laws adopted by both Federal House of Representatives. But the States, which reflected the view that States fact that more States did not adopt congres- could supplement the Qualifications Clauses. sional property qualifications does not mean See supra, at 1903–1904, and n. 31, 1905.36 that the Qualifications Clauses were com-

S 913If the majority can draw no support monly understood to be exclusive; there are from state treatment of religious qualifica- a host of other explanations for the relative tions and rotation requirements, we are left liberality of state election laws.37 And what-

35. The majority correctly notes that each conven- entirely away from the legislature. It obviously tion, in addition to proposing a list of specific would not follow that they doubted their ability ‘‘Amendments to the Constitution,’’ proposed a to amend the State Constitution to impose con- ‘‘Declaration of Rights’’ to be appended to the straints on their own choice of Representatives. Constitution. In both States, this ‘‘Declaration’’ The ratifying convention’s proposal thus sheds contained the general exhortation that members absolutely no light on whether New Yorkers con- of both the Legislative and Executive Branches sidered the Qualifications Clauses to be exclu- ‘‘should, at fixed periods, be reduced to a private sive. station, return into the mass of the people, and the vacancies be supplied by certain and regular 37. Property qualifications may simply have elections.’’ 4 Elliot 243; 3 id., at 657–658. But seemed unnecessary. For instance, it surely was both Declarations went on to state that at these far more likely that a pauper would secure one of elections, the previous occupants of the office in the 202 seats in the South Carolina House of question should ‘‘be eligible or ineligible [for Representatives than that he would secure one of reelection], as the rules of the constitution of South Carolina’s five seats in the United States government and the laws shall direct.’’ 4 id., at House of Representatives. Compare S.C. Const. 243; 3 id., at 658. Accordingly, it is hard to of 1778, Art. XIII, in 6 Thorpe 3251, with U.S. describe either Declaration as a ‘‘proposed TTT Const., Art. I, § 2, cl. 3; cf. S.C. Const. of 1790, constitutional amendment supporting term limits Art. I, § 3 (providing for a 122–seat State House for Members of Congress.’’ See ante, at 1866, n. of Representatives), in 6 Thorpe 3258. It may be 40. significant, then, that the one State that saw fit to enact a congressional property qualification was 36. As for New York, the State’s ratifying conven- also the State that had the largest congressional tion did propose amending the Federal Constitu- delegation. See U.S. Const., Art. I, § 2, cl. 3 tion to provide ‘‘[t]hat no person be eligible as a (allocating 10 seats to Virginia). In addition, senator for more than six years in any term of people of the day expected that ‘‘[t]he representa- twelve years.’’ 1 Elliot 329–330. The majority tives of each State [in the federal House] TTT will finds it significant that when this suggestion fell probably in all cases have been members TTT of on deaf ears, New Yorkers did not amend their the State legislature.’’ The Federalist No. 56, at State Constitution to impose this restriction on 348 (Madison); see also n. 17, supra (quoting their state legislature’s appointment authority. article by John Stevens, Jr.). Because most Before the Seventeenth Amendment was States had property requirements for their state adopted, however, the Federal Constitution vest- legislators, there may have been little perceived ed the choice of Senators in the state legislatures need for a separate property qualification for rather than the people. See Art. I, § 3, cl. 1. At their Members of Congress. least without a delegation of this authority from the legislature, cf. supra, at 1890–1893, and n. Even States that wanted to create such a quali- 16, the people of New York may well have fication, and that considered it within their con- thought that they could no more amend the State stitutional authority to do so, might have been Constitution to narrow the legislature’s choices deterred by the possibility that the Federal House for Senator than they could amend the State of Representatives would take a different view. Constitution to take the appointment of Senators As I have shown, there certainly was no general 1908 115 SUPREME COURT REPORTER 514 U.S. 913 ever the explanation, the fact remains that other of whom had to be a resident of Balti-

S 914five of the election laws enacted immedi- more City. McCreery was elected to the ately after ratification of the Constitution Ninth Congress as a resident of Baltimore imposed additional qualifications that would City. After his reelection to the Tenth Con- clearly be unconstitutional under today’s gress, however, his qualifications were chal- holding. This history of state practice— lenged on the ground that because he divided which is every bit as strong as the history we his time between his summer estate in Balti- deemed ‘‘decisive’’ in McPherson v. Blacker, more County and his residence in Washing- 146 U.S., at 36, 13 S.Ct., at 11—refutes the ton, D.C., he was no longer a resident of majority’s position that the Qualifications Baltimore City at all. Clauses were generally understood to include As the majority notes, a report of the an unstated exclusivity provision. House Committee of Elections recommended 5 that McCreery be seated on the ground that The same is true of the final category of state legislatures have no authority to add to historical evidence discussed by the majority: the qualifications set forth in the Constitu- controversies in the House and the Senate tion. See 17 Annals of Cong. 871 (1807); over seating candidates who were duly elect- ante, at 1861. But the committee’s submis- ed but who arguably failed to satisfy qualifi- sion of this initial report sparked a heated cations imposed by state law. debate that spanned four days, with many

S 915As the majority concedes, ‘‘ ‘congres- speeches on both sides of the issue. See 17 sional practice has been erratic’ ’’ and is of Annals of Cong. 871–919, 927–947 (reporting limited relevance anyway. Ante, at 1862– proceedings from Nov. 12, 13, 16, and 18, 1863 (quoting Powell v. McCormack, 395 1807). Finally, a large majority of the House U.S., at 545, 89 S.Ct., at 1976). Actions voted to recommit the report to the Commit- taken by a single House of Congress in 1887 tee of Elections. Id., at 950 (Nov. 19, 1807). or in 1964 shed little light on the original The committee thereupon deleted all refer- understanding of the Constitution. Presum- ences to the S 916constitutional issue and is- ably for that reason, the majority puts its sued a revised report that focused entirely on chief emphasis on the 1807 debate in the the factual question whether McCreery satis- House of Representatives about whether to fied the state residency requirement. Id., at seat Maryland’s William McCreery. See 1059–1061 (Dec. 7, 1807). After receiving the ante, at 1861–1862. I agree with the majori- new report, the House seated McCreery with ty that this debate might lend some support a resolution simply saying: ‘‘Resolved, That to the majority’s position if it had transpired William McCreery is entitled to his seat in as reported in Powell v. McCormack. See this House.’’ Id., at 1237 (Dec. 24, 1807). ante, at 1861–1862. But the Court’s discus- By overwhelming majorities, the House re- sion—both in Powell and today—is mislead- jected both a proposal to specify that ing. McCreery possessed ‘‘the qualifications re- A Maryland statute dating from 1802 had quired by the law of Maryland,’’ ibid., and a created a district entitled to send two repre- proposal to declare only that he was ‘‘duly sentatives to the House, one of whom had to qualified, agreeably to the constitution of the be a resident of Baltimore County and the United States,’’ id., at 1231. Far from sup-

understanding that the Qualifications Clauses in- temporarily be deprived of representation in cluded an unstated exclusivity provision. But Congress. Alternatively, they may simply have people of the day did consider this to be ‘‘one of wanted to stay away from difficult constitutional the doubtful questions on which honest men may questions. Cf. Ashwander v. TVA, 297 U.S. 288, differ with the purest motives.’’ 14 Writings of 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) Thomas Jefferson, at 83 (letter to Joseph C. Ca- (Brandeis, J., concurring). Thus, despite con- bell, Jan. 31, 1814); see n. 14, supra. If some cluding that the States do enjoy the power to States feared that the ‘‘honest men’’ in the House prescribe qualifications, Thomas Jefferson ques- might throw out the results of an election be- tioned whether the advantages of added qualifi- cause of a qualifications law, they might well cations were sufficient to justify enacting a law have thought that any policy benefits of such whose constitutionality could be disputed. See laws were outweighed by the risk that they would 14 Writings of Thomas Jefferson, at 84. 514 U.S. 918 U.S. TERM LIMITS, INC. v. THORNTON 1909 Cite as 115 S.Ct. 1842 (1995) porting the majority’s position, the McCreery Ga.Code Ann. §§ 21–2–2(25), 21–2–8 (1993 episode merely demonstrates that the 10th and Supp.1994). Likewise, after today’s de- House of Representatives was deeply divided cision, the people of each State must leave over whether state legislatures may add to open the possibility that they will trust some- the qualifications set forth in the Constitu- one with their vote in Congress even though tion.38 they do not trust him with a vote in the election for Congress. See, e.g., R.I.Gen. The majority needs more than that. The Laws § 17–14–1.2 (1988) (restricting candida- prohibition that today’s majority enforces is cy to people ‘‘qualified to vote’’). found nowhere in the text of the Qualifica- tions Clauses. In the absence of evidence In order to invalidate § 3 of Amendment that the Clauses nonetheless were generally 73, however, the majority must go further. understood at the time of the framing to The bulk of the majority’s analysis—like Part imply such a prohibition, we may not use the II of my dissent—addresses the issues that Clauses to invalidate the decisions of a State would be raised if Arkansas had prescribed or its people. ‘‘genuine, unadulterated, undiluted term lim- its.’’ See Rotunda, 73 Ore.L.Rev., at 570. III But as the parties have agreed, Amendment 73 does not actually create this kind of dis- It is radical enough for the majority to qualification. See S 918Tr. of Oral Arg. 53–54; hold that the Constitution implicitly pre- cf. ante, at 1867. It does not say that cov- cludes the people of the States from prescrib- ered candidates may not serve any more ing any eligibility requirements for the terms in Congress if reelected, and it does congresSsional917 candidates who seek their not indirectly achieve the same result by votes. This holding, after all, does not stop barring those candidates from seeking re- with negating the term limits that many election. It says only that if they are to win States have seen fit to impose on their Sena- reelection, they must do so by write-in votes. tors and Representatives.39 Today’s decision also means that no State may disqualify con- One might think that this is a distinction gressional candidates whom a court has without a difference. As the majority notes, found to be mentally incompetent, see, e.g., ‘‘[t]he uncontested data submitted to the Ar- Fla.Stat. §§ 97.041(2), 99.021(1)(a) (1991), kansas Supreme Court’’ show that write-in who are currently in prison, see, e.g., Ill. candidates have won only six congressional Comp.Stat.Ann., ch. 10, §§ 5/3–5, 5/7–10, elections in this century. Ante, at 1868, n. 5/10–5 (1993 and West Supp.1995), or who 43. But while the data’s accuracy is indeed have past vote-fraud convictions, see, e.g., ‘‘uncontested,’’ petitioners filed an equally

38. Though obliquely acknowledging this fact, the Const., Art. V, § 8; Ore. Const., Art. II, § 20; majority thinks it relevant that some subsequent S.D. Const., Art. III, § 32; Utah Code Ann. commentators have mistakenly accepted the § 20A–10–301. Eight other States had enacted gloss put on the McCreery case by two editors in ‘‘ballot access’’ provisions triggered by long-term 1834. See ante, at 1861–1862 (citing treatises, incumbency or multiple prior terms in Congress. each of which relies upon Cases of Contested See Ariz. Const., Art. VII, § 18; Ark. Const., Elections in Congress (M. Clarke & D. Hall eds. Amdt. 73, § 3; Calif.Elec.Code Ann. § 25003 1834)). But surely we need not accept an inac- (West Supp.1994); Fla. Const., Art. VI, curate view of history merely because it has §§ 4(b)(5), (6); N.D.Cent.Code § 16.1–01–13.1 appeared in print. The majority also cites Thom- (Supp.1993); Okla. Const., Art. II, § 12A; Wash. as Jefferson’s hazy recollection of the McCreery Rev.Code §§ 29.68.015, 29.68.016 (1994); Wyo. case, see ante, at 1861–1862, without acknowl- Stat. § 22–5–104 (Supp.1994). In the 1994 elec- edging Jefferson’s conclusion that the States tions, six more States—Alaska, Idaho, Maine, were free to supplement the Qualifications Claus- Massachusetts, Nebraska, and Nevada—enacted es. See supra, at 1888–1889. term-limit or ballot-access measures, bringing to 39. Going into the November 1994 elections, 22 the total number of States with such provi- eight States had adopted ‘‘pure’’ term limits of sions. See Pear, The 1994 Elections, N.Y. Times, one sort or another. See Colo. Const., Art. XVI- Nov. 10, 1994, p. B7, col. 4. In 21 of these II, § 9a; Mich. Const., Art. II, § 10; Mo. Const., States, the measures have been enacted by direct Art. III, § 45(a); Mont. Const., Art. IV, § 8; Ohio vote of the people. 1910 115 SUPREME COURT REPORTER 514 U.S. 918 uncontested affidavit challenging the data’s One possible explanation for why the actu- relevance. As political science professor al effect of the Arkansas amendment might James S. Fay swore to the Arkansas Su- be irrelevant is that the Arkansas Supreme preme Court, ‘‘[m]ost write-in candidacies in Court has already issued a binding determi- the past have been waged by fringe candi- nation of fact on this point. Thus, the major- dates, with little public support and extreme- ity notes that ‘‘the state court’’ has advised ly low name identification.’’ App. 201. To us that ‘‘there is nothing more than a faint the best of Professor Fay’s knowledge, in glimmer of possibility that the excluded can- modern times only two incumbent Congress- didate will win.’’ Ante, at 1868. But the men have ever sought reelection as write-in majority is referring to a mere plurality opin- candidates. One of them was of ion, signed by only three of the seven justices Arkansas, who had first entered the House of who decided the case below. One of the two Representatives by winning 51% of the vote justices who concurred in the plurality’s hold- as a write-in candidate in 1958; Alford then ing that Amendment 73 violates the Qualifi- waged a write-in campaign for reelection in cations Clauses did write that ‘‘as a practical 1960, winning a landslide 83% of the vote matter, the amendment would place term against an opponent who enjoyed a place on limits on service in the Congress,’’ but he the ballot. Id., at 201–202. The other in- immediately followed this comment with the cumbent write-in candidate was Philip J. concession that write-in candidacies are not Philbin of Massachusetts, who—despite los- entirely hopeless; his point was simply that ing his party primary and thus his spot on ‘‘as a practical matter, write-in candidates the ballot—won 27% of the vote in his unsuc- are at a distinct disadvantage.’’ 316 Ark., at cessful write-in candidacy. See id., at 203. 276, 872 S.W.2d, at 364 (Dudley, J., concur- According to Professor Fay, these results— ring in part and dissenting in part). As a coupled with other examples of successful result, the majority may rely upon the state write-in campaigns, such as Ross Perot’s vic- court only for the proposition that Amend- tory in North Dakota’s 1992 Democratic ment 73 makes the specified candidates ‘‘dis- Presidential primary—‘‘demonstrate that tinct[ly]’’ worse off than they would be in its when a write-in candidate is well-known and absence—an unassailable proposition that pe- well-funded, it is quite possible for him or titioners have conceded. her to win an election.’’ Ibid.

S 919The majority responds that whether In the current posture of these cases, in- ‘‘the Arkansas amendment has the likely ef- deed, it would have been extremely irregular fect of creating a qualification’’ is ‘‘simply for the Arkansas Supreme Court to have irrelevant to our holding today.’’ Ante, at gone any further. Disputed questions of 1871. But the majority—which, after all, fact, in Arkansas as elsewhere, generally are bases its holding on the asserted exclusivity resolved at trial rather than on appeal from of the Qualifications Clauses—never ade- the entry of summary judgment. See 40 quately explains how it can take this position S 920Ark.Rule Civ.Proc. 56. Accordingly, the and still reach its conclusion. majority explicitly disclaims any reliance on

40. Even if one were inclined to believe that the S.Ct., at 1873 (O’CONNOR, J., concurring in Arkansas Supreme Court had departed from the judgment); cf. id., at 379, 111 S.Ct., at 1877 usual practice and had purported to make a (STEVENS, J., dissenting) (identifying no stan- binding determination on a disputed issue of dard of review, but arguing that the state court’s fact, we would not be foreclosed from examining decision should be reversed because its underly- the basis for that determination. To be sure, on ing factual findings were erroneous). In certain direct review of a state court’s judgment, we will areas, indeed, this Court apparently gives quite not ‘‘conduct a more searching review of find- ings made in state trial court than we conduct little deference to the initial factfinder, but rather with respect to federal district court findings.’’ ‘‘exercise[s] its own independent judgment’’ Hernandez v. New York, 500 U.S. 352, 369, 111 about the factual conclusions that should be S.Ct. 1859, 1871, 114 L.Ed.2d 395 (1991) (plural- drawn from the record. See Bose Corp. v. Con- ity opinion). But that is only to say that we will sumers Union of the United States, Inc., 466 U.S. review state-court findings under the ‘‘clear er- 485, 501, and n. 17, 104 S.Ct. 1949, 1959, and n. ror’’ standard. Ibid.; accord, id., at 372, 111 17, 80 L.Ed.2d 502 (1984) (STEVENS, J.). 514 U.S. 922 U.S. TERM LIMITS, INC. v. THORNTON 1911 Cite as 115 S.Ct. 1842 (1995) the state court’s purported finding about the drafters of the preamble expected to flow effect of Amendment 73. See ante, at 1868, from what they perceived as the restoration n. 44. of electoral competition to congressional Instead, the majority emphasizes another races. See infra, at 1912. In any event, purported conclusion of the Arkansas Su- inquiries into legislative intent are even more preme Court. As the majority notes, the difficult than usual when the legislative body plurality below asserted that ‘‘[t]he intent’’ of whose unified intent must be determined Amendment 73 was ‘‘to disqualify congres- consists of 825,162 Arkansas voters. sional incumbents from further service.’’ 316 Ark., at 266, 872 S.W.2d, at 357. According The majority nonetheless thinks it clear to the majority, ‘‘[w]e must, of course, accept that the goal of § 3 is ‘‘to prevent the elec- the state court’s view of the purpose of its tion of incumbents.’’ See ante, at 1867–1868, own law: We are thus authoritatively in- 1871. In reaching this conclusion at the formed that the sole purpose of § 3 of summary-judgment stage, however, the ma- Amendment 73 was to attempt to achieve a jority has given short shrift to petitioners’ result that is forbidden by the Federal Con- contrary claim. Petitioners do not deny that stitution.’’ Ante, at 1867. § 3 of Amendment 73 intentionally handicaps I am not sure why the intent behind a law a class of candidates, in the sense that it should affect our analysis under the Qualifi- decreases their pre-existing electoral cations Clauses. If a law does not in fact add chances. But petitioners do deny that § 3 is to the constitutional qualifications, the mis- intended to (or will in fact) ‘‘prevent’’ the taken expectations of the people who enacted covered candidates from winning reelection, it would not seem to affect whether it vio- or ‘‘disqualify’’ them from further service. lates the alleged exclusivity of those Clauses. One of petitioners’ central arguments is that But in any event, the majority is wrong about congressionally conferred advantages have what ‘‘the state court’’ has told us. Even the artificially inflated the pre-existing electoral plurality S 921below did not flatly assert that chances of the covered candidates, and the desire to ‘‘disqualify’’ congressional in- S 922that Amendment 73 is merely designed to cumbents was the sole purpose behind § 3 of level the playing field on which challengers Amendment 73. More important, neither of compete with them. the justices who concurred in the plurality’s holding said anything at all about the intent To understand this argument requires behind Amendment 73. As a result, we can- some background. Current federal law (en- not attribute any findings on this issue to the acted, of course, by congressional incum- Arkansas Supreme Court. bents) confers numerous advantages on in- The majority suggests that this does not cumbents, and these advantages are widely matter, because Amendment 73 itself says thought to make it ‘‘significantly more diffi- that it has the purpose of ‘‘evading the re- cult’’ for challengers to defeat them. Cf. quirements of the Qualifications Clauses.’’ ante, at 1868. For instance, federal law See ante, at 1868 (referring to the ‘‘avowed gives incumbents enormous advantages in purpose’’ of Amendment 73). The majority building name recognition and good will in bases this assertion on the amendment’s their home districts. See, e.g., 39 U.S.C. preamble, which speaks of ‘‘limit[ing] the § 3210 (permitting Members of Congress to terms of elected officials.’’ See ante, at 1868. send ‘‘franked’’ mail free of charge); 2 U.S.C. But this statement may be referring only to §§ 61–1, 72a, 332 (permitting Members to §§ 1 and 2 of Amendment 73, which impose have sizable taxpayer-funded staffs); 2 true term limits on state officeholders. Even U.S.C. § 123b (establishing the House Re- if the statement refers to § 3 as well, it may cording Studio and the Senate Recording and simply reflect the limiting effects that the Photographic Studios).41 At the same time

41. Former Representative William E. Frenzel de- plains: ‘‘Taxpayers pay for the facilities, the per- scribes the House Recording Studio as a sophisti- sonnel that run them, the production costs, and cated operation used ‘‘to prepare tapes of the costs of distributing, by mail or otherwise, speeches and messages to voters.’’ Frenzel ex- the tapes that members supply (from their tax- 1912 115 SUPREME COURT REPORTER 514 U.S. 922 that incumbent Members of Congress enjoy even at times when their own party lost these in-kind benefits, Congress imposes control of the Presidency itself.’’ Cutler, spending and contribution limits in congres- Now is the Time for All Good Men TTT, 30 sional campaigns that ‘‘can prevent challeng- Wm. & Mary L.Rev. 387, 395; see also Kris- ers from spending more TTT to overcome tol, Term Limitations: Breaking Up the Iron their disadvantage in name recognition.’’ Triangle, 16 Harv.J.L. & Pub.Policy 95, 97, App. to Brief for State of Washington as and n. 11 (1993) (reporting that in the 100th Amicus Curiae A–4 (statement of former 10– Congress, as many Representatives died as term Representative William E. Frenzel, re- were defeated at the polls). Even in the ferring to 2 U.S.C. § 441a). Many observers November 1994 elections, which are widely believe that the campaign-finance laws also considered to have effected the most sweep- give incumbents an ‘‘enormous fund-raising ing change in Congress in recent memory, edge’’ over their challengers by giving a 90% of the incumbents who sought reelection large financing role to entities with incentives to the House were successful, and nearly half to curry favor with incumbents. Wertheimer of the losers were completing only their first & Manes, Campaign Finance Reform: A Key terms. Reply Brief for Petitioners U.S. to Restoring the Health of Our Democracy, Term Limits, Inc., et al. 4, n. 5. Only 2 of 94 Colum.L.Rev. 1126, 1133 (1994). In the 26 Senate incumbents seeking reelection

S 923addition, the internal rules of Congress were defeated, see ibid., and one of S 924them put a substantial premium on seniority, with had been elected for the first time in a the result that each Member’s already plenti- special election only a few years earlier. ful opportunities to distribute benefits to his The voters of Arkansas evidently believe constituents increase with the length of his that incumbents would not enjoy such over- tenure. In this manner, Congress effectively whelming success if electoral contests were ‘‘fines’’ the electorate for voting against in- truly fair—that is, if the government did not cumbents. Hills, 53 U.Pitt.L.Rev., at 144– put its thumb on either side of the scale. 145. The majority offers no reason to question the Cynics see no accident in any of this. As accuracy of this belief. Given this context, former Representative Frenzel puts it: ‘‘The petitioners portray § 3 of Amendment 73 as practice TTT is for incumbents to devise insti- an effort at the state level to offset the tutional structures and systems that favor electoral advantages that congressional in- incumbents.’’ App. to Brief for State of cumbents have conferred upon themselves at Washington as Amicus Curiae A–3. In fact, the federal level. despite his service from 1971 to 1989 on the To be sure, the offset is only rough and House Administration Committee (which has approximate; no one knows exactly how jurisdiction over election laws), Representa- large an electoral benefit comes with having tive Frenzel can identify no instance in which been a long-term Member of Congress, and Congress ‘‘changed election laws in such a no one knows exactly how large an electoral way as to lessen the chances of re-election disadvantage comes from forcing a well-fund- for incumbents, or to improve the election ed candidate with high name recognition to opportunities for challengers.’’ Ibid. run a write-in campaign. But the majority At the same time that incumbents enjoy does not base its holding on the premise that the electoral advantages that they have con- Arkansas has struck the wrong balance. In- ferred upon themselves, they also enjoy as- stead, the majority holds that the Qualifica- tonishingly high reelection rates. As Lloyd tions Clauses preclude Arkansas from trying Cutler reported in 1989, ‘‘over the past thirty to strike any balance at all; the majority years a weighted average of ninety percent simply says that ‘‘an amendment with the of all House and Senate incumbents of both avowed purpose and obvious effect of evading parties who ran for reelection were reelected, the requirements of the Qualifications Claus-

payer-funded expense accounts). These mes- themselves.’’ App. to Brief for State of Washing- sages are widely disseminated by broadcasters, ton as Amicus Curiae A–5 to A–6. who can use them to fill air time at no cost to 514 U.S. 926 U.S. TERM LIMITS, INC. v. THORNTON 1913 Cite as 115 S.Ct. 1842 (1995) es by handicapping a class of candidates for courts. If it is true that ‘‘the current cannot stand.’’ Ante, at 1868. Thus, the congressional campaign finance system TTT majority apparently would reach the same has created an electoral system so stacked result even if one could demonstrate at trial against challengers that in many elections that the electoral advantage conferred by voters have no real choices,’’ Wertheimer & Amendment 73 upon challengers precisely Manes, 94 Colum.L.R., at 1133, are the Fed- counterbalances the electoral advantages eral Election Campaign Act Amendments of conferred by federal law upon long-term 1974 unconstitutional under (of all things) the Members of Congress. Qualifications Clauses? Cf. Buckley v. Valeo, For me, this suggests only two possibili- 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 ties. Either the majority’s holding is wrong (1976) (upholding the current system against and Amendment 73 does not violate the Qual- First Amendment challenge). If it can be ifications Clauses, or (assuming the accuracy shown that nonminorities are at a significant of petitioners’ factual claims) the electoral disadvantage when they seek election in dis- system that exists without Amendment 73 is tricts dominated by minority voters, would no less unconstitutional than the electoral the intentional creation of ‘‘majority-minority system that exists with Amendment 73. S 926districts’’ violate the Qualifications Clauses even if it were to survive scrutiny under the S 925I do not mean to suggest that States have unbridled power to handicap particular Fourteenth Amendment? Cf. Shaw v. Reno, classes of candidates, even when those candi- 509 U.S. 630, 649, 113 S.Ct. 2816, 2828, 125 dates enjoy federally conferred advantages L.Ed.2d 511 (1993) (‘‘[W]e express no view as that may threaten to skew the electoral pro- to whether [the intentional creation of such cess. But laws that allegedly have the pur- districts] always gives rise to an equal pro- pose and effect of handicapping a particular tection claim’’); id., at 677, 113 S.Ct., at class of candidates traditionally are reviewed 2843–2844 (STEVENS, J., dissenting) (argu- under the First and Fourteenth Amend- ing that States may draw district lines for ments rather than the Qualifications Clauses. the ‘‘sole purpose’’ of helping blacks or mem- Compare Storer v. Brown, 415 U.S., at 728– bers of certain other groups win election to 736, 94 S.Ct., at 1278–1282 (undertaking a Congress). More generally, if ‘‘[d]istrict lengthy First and Fourteenth Amendment lines are rarely neutral phenomena’’ and if analysis of a California rule that denied bal- ‘‘districting inevitably has and is intended to lot access to any independent candidate for have substantial political consequences,’’ Congress who had not severed his ties to a Gaffney v. Cummings, 412 U.S. 735, 753, 93 political party at least one year prior to the S.Ct. 2321, 2331, 37 L.Ed.2d 298 (1973), will immediately preceding primary election, or plausible Qualifications Clause challenges 17 months before the general election), with greet virtually every redistricting decision? id., at 746, n. 16, 94 S.Ct., at 1287, n. 16 Cf. id., at 754, 93 S.Ct., at 2332 (noting our (dismissing as ‘‘wholly without merit’’ the general refusal to use the Equal Protection notion that this rule might violate the Qualifi- Clause to ‘‘attemp[t] the impossible task of cations Clauses). Term-limit measures have extirpating politics from what are the essen- tended to survive such review without diffi- tially political processes of the sovereign culty. See, e.g., Moore v. McCartney, 425 States’’); see also Burns v. Richardson, 384 U.S. 946, 96 S.Ct. 1689, 48 L.Ed.2d 190 U.S. 73, 89, n. 16, 86 S.Ct. 1286, 1294, n. 16, (1976) (dismissing an appeal from State ex 16 L.Ed.2d 376 (1966) (finding nothing invidi- rel. Maloney v. McCartney, 159 W.Va. 513, ous in the practice of drawing district lines in 223 S.E.2d 607 (1976), on the ground that a way that helps current incumbents by limits on the terms of state officeholders do avoiding contests between them). not even raise a substantial federal question The majority’s opinion may not go so far, under the First and Fourteenth Amend- although it does not itself suggest any princi- ments). pled stopping point. No matter how narrow- To analyze such laws under the Qualifica- ly construed, however, today’s decision reads tions Clauses may open up whole new vistas the Qualifications Clauses to impose substan- 1914 115 SUPREME COURT REPORTER 514 U.S. 926 tial implicit prohibitions on the States and 2. Searches and Seizures O26 the people of the States. I would not draw In evaluating the scope of the Fourth such an expansive negative inference from Amendment protection that the people can the fact that the Constitution requires Mem- be secure in their persons, houses, papers, bers of Congress to be a certain age, to be and effects, against unreasonable searches inhabitants of the States that they represent, and seizures, Supreme Court has looked to and to have been United States citizens for a the traditional protections against unreason- specified period. Rather, I would read the able searches and seizures afforded by the Qualifications Clauses to do no more than common law at the time of the framing. what they say. I respectfully dissent. U.S.C.A. Const.Amend. 4.

3. Searches and Seizures O23 The Fourth Amendment’s flexible re- , quirement of reasonableness should not be read to mandate a rigid rule of announce- ment that ignores countervailing law enforce- ment interests. U.S.C.A. Const.Amend. 4. 514 U.S. 927, 131 L.Ed.2d 976 4. Searches and Seizures O54, 143.1 Although a search or seizure of a dwell- S Sharlene WILSON, Petitioner 927 ing might be constitutionally defective if po- v. lice officers enter it without prior announce- ment, law enforcement interests may also ARKANSAS. establish the reasonableness of an unan- No. 94–5707. nounced entry. U.S.C.A. Const.Amend. 4. Argued March 28, 1995. Syllabus * Decided May 22, 1995. Petitioner was convicted on state-law drug charges after the Arkansas trial court denied her evidence-suppression motion, in Drug defendant, convicted in the Circuit which she asserted that the search of her Court, Hot Springs County, John W. Cole, J., home was invalid because, inter alia, the appealed denial of suppression motion. The police had violated the common-law principle Arkansas Supreme Court, Hays, J., 317 Ark. requiring them to announce their presence 548, 878 S.W.2d 755, affirmed, and certiorari and authority before entering. The State review was sought. The Supreme Court, Supreme Court affirmed, rejecting petition- Justice Thomas, held that whether officers er’s argument that the common-law ‘‘knock knock and announce their presence and au- and announce’’ principle is required by the thority before entering dwelling, as required Fourth Amendment. by common law, is factor to be considered in determining reasonableness of search. Held: The common-law knock and an- nounce principle forms a part of the Fourth Reversed and remanded. Amendment reasonableness inquiry. Pp. 1916–1919. (a) An officer’s unannounced entry into 1. Searches and Seizures 54, 143.1 O a home might, in some circumstances, be The common law knock-and-announce unreasonable under the Amendment. In principle forms part of the Fourth Amend- evaluating the scope of the constitutional ment reasonableness inquiry. U.S.C.A. right to be secure in one’s house, this Court Const.Amend. 4. has looked to the traditional protections

* The syllabus constitutes no part of the opinion of See United States v. Detroit Lumber Co., 200 U.S. the Court but has been prepared by the Reporter 321, 337, 26 S.Ct. 282, 287, 50 L.Ed.2d 499. of Decisions for the convenience of the reader.