Article 1, Section 2, Clause 2
Joseph Story, Commentaries on the Constitution 2:§§ 612--281833
§ 612. It is obvious, that the inquiry, as to the due qualifications of representatives, like that, as to the due qualifications of electors in a government, is susceptible, in its own nature, of very different answers, according to the habits, institutions, interests, and local peculiarities of different nations. It is a point, upon which we can arrive at no universal rule, which will accommodate itself to the welfare and wants of every people, with the same proportionate advantages. The great objects are, or ought to be, to secure, on the part of the representatives, fidelity, sound judgment, competent information, and incorruptible independence. The best modes, by which these objects can be attained, are matters of discussion and reasoning, and essentially dependent upon a large and enlightened survey of the human character and passions, as developed in the different stages of civilized society. There is great room, therefore, for diversities of judgment and opinion upon a subject so comprehensive and variable in its elements. It would be matter of surprise, if doctrines essentially different, nay, even opposite to each other, should not, under such circumstances, be maintained by political writers, equally eminent and able. Upon questions of civil policy, and the fundamental structure of governments, there has hitherto been too little harmony of opinion among the greatest men to encourage any hope, that the future will be less fruitful in dissonances, than the past. In the practice of governments, a very great diversity of qualifications has been insisted on, as prerequisites of office; and this alone would demonstrate, that there was not admitted to exist any common standard of superior excellence, adapted to all ages, and all nations.
§ 613. In Great-Britain, besides those negative qualifications, which are founded in usage, or positive law, such as the exclusion of persons holding certain offices and pensions, it is required, that every member for a country, or knight of a shire, (as he is technically called,) shall have a clear estate of freehold, or copyhold, to the value of £600 sterling per annum; and every member for a city or borough, to the value of £300, except the eldest sons of peers, and of persons qualified to be knights of shires, and except the members of the two universities.
§ 614. Among the American colonies antecedent to the revolution, a great diversity of qualifications existed; and the state constitutions, subsequently formed, by no means lessen that diversity. Some insist upon a freehold, or other property, of a certain value; others require a certain period of residence, and citizenship only; others require a freehold only; others a payment of taxes, or an equivalent; others, again, mix up all the various qualifications of property, residence, citizenship, and taxation, or substitute some of these, as equivalents for others.
§ 615. The existing qualifications in the states being then so various, it may be thought, that the best course would have been, to adopt the rules of the states respectively, in regard to the most numerous branch of their own legislatures. And this course might not have been open to serious objections. But, as the qualifications of members were thought to be less carefully defined in the state constitutions, and more susceptible of uniformity, than those of the electors, the subject was thought proper for regulation by the convention. And it is observable, that the positive qualifications are few and simple. They respect only age, citizenship, and inhabitancy.
§ 616. First, in regard to age. The representative must have attained twenty-five years. And certainly to this no reasonable objection can be made. If experience, or wisdom, or knowledge be of value in the national councils, it can scarcely be pretended, that an earlier age could afford a certain guaranty for either. That some qualification of age is proper, no one will dispute. No one will contend, that persons, who are minors, ought to be eligible; or, that those, who have not attained manhood, so as to be entitled by the common law to dispose of their persons, or estates, at their own will, would be fit depositaries of the authority to dispose of the rights, persons, and property of others. Would the mere attainment of twenty-one years of age be a more proper qualification? All just reasoning would be against it. The characters and passions of young men can scarcely be understood at the moment of their majority. They are then new to the rights of self-government; warm in their passions; ardent in their expectations; and, just escaping from pupilage, are strongly tempted to discard the lessons of caution, which riper years inculcate. What they will become, remains to be seen; and four years beyond that period is but a very short space, in which to try their virtues, develop their talents, enlarge their resources, and give them a practical insight into the business of life adequate to their own immediate wants and duties. Can the interests of others be safely confided to those, who have yet to learn how to take care of their own? The British constitution has, indeed, provided only for the members of the house of commons not being minors; and illustrious instances have occurred to show, that great statesmen may be formed even during their minority. But such instances are rare, they are to be looked at as prodigies, rather than as examples; as the extraordinary growth of a peculiar education and character, and a hot-bed precocity in a monarchy, rather than as the sound and thrifty growth of the open air, and the bracing hardihood of a republic. In the convention this qualification, as to age, did not pass without a struggle. It was originally carried by a vote of seven states against three, one being divided; though it was ultimately adopted without a division. In the state conventions it does not seem to have formed any important topic of debate.
§ 617. Secondly, in regard to citizenship. It is required, that the representative shall have been a citizen of the United States seven years. Upon the propriety of excluding aliens from eligibility, there could scarcely be any room for debate; for there could be no security for a due administration of any government by persons, whose interests and connexions were foreign, and who owed no permanent allegiance to it, and had no permanent stake in its measures or operations. Foreign influence, of the most corrupt and mischievous nature, could not fail to make its way into the public councils, if there was no guard against the introduction of alien representatives. It has accordingly been a fundamental policy of most, if not of all free states, to exclude all foreigners from holding offices in the state. The only practical question would seem to be, whether foreigners, even after naturalization, should be eligible as representatives; and if so, what was a suitable period of citizenship for the allowance of the privilege. In England, all aliens born, unless naturalized, were originally excluded from a seat in parliament; and now, by positive legislation, no alien, though naturalized, is capable of being a member of either house of parliament. A different course, naturally arising from the circumstances of the country, was adopted in the American colonies antecedent to the revolution, with a view to invite emigrations, and settlements, and thus to facilitate the cultivation of their wild and waste lands. A similar policy had since pervaded the state governments, and had been attended with so many advantages, that it would have been impracticable to enforce any total exclusion of naturalized citizens from office. In the convention it was originally proposed, that three years' citizenship should constitute a qualification; but that was exchanged for seven years by a vote of ten states to one. No objection seems even to have been suggested against this qualification; and hitherto it has obtained a general acquiescence or approbation. It certainly subserves two important purposes. 1. That the constituents have a full opportunity of knowing the character and merits of their representative. 2. That the representative has a like opportunity of learning the character, and wants, and opinions of his constituents.
§ 618. Thirdly, in regard to inhabitancy. It is required, that the representative shall, when elected, be an inhabitant of the state, in which he shall be chosen. The object of this clause, doubtless, was to secure an attachment to, and a just representation of, the interests of the state in the national councils. It was supposed, that an inhabitant would feel a deeper concern, and possess a more enlightened view of the various interests of his constituents, than a mere stranger. And, at all events, he would generally possess more entirely their sympathy and confidence. It is observable, that the inhabitancy required is within the state, and not within any particular district of the state, in which the member is chosen. In England, in former times, it was required, that all the members of the house of commons should be inhabitants of the places, for which they were chosen. But this was for a long time wholly disregarded in practice, and was at length repealed by statute of 14 Geo. 3, ch. 58. The circumstance is not a little remarkable in parliamentary history; and it establishes, in a very striking manner, how little mere theory can be regarded in matters of government. It was found by experience, that boroughs and cities were often better represented by men of eminence, and known patriotism, who were strangers to them, than by those chosen from their own vicinage. And to this very hour some of the proudest names in English history, as patriots and statesmen, have been the representatives of obscure, and, if one may so say, of ignoble boroughs.
§ 619. An attempt was made in the convention to introduce a qualification of one year's residence before the election; but it failed, four states voting in favour of it, six against it, and one being divided. The omission to provide, that a subsequent non-residence shall be a vacation of the seat, may in some measure defeat the policy of the original limitation. For it has happened, in more than one instance, that a member, after his election, has removed to another state, and thus ceased to have that intimate intercourse with, and dependence upon his constituents, upon which so much value has been placed in all his discussions on this subject.
§ 620. It is observable, that no qualification, in point of estate, has been required on the part of members of the house of representatives. Yet such a qualification is insisted on, by a considerable number of the states, as a qualification for the popular branch of the state legislature. The probability is, that it was not incorporated into the constitution of the Union from the difficulty of framing a provision, that would be generally acceptable. Two reasons have, however, been assigned by a learned commentator for the omission, which deserve notice. First, that in a representative government the people have an undoubted right to judge for themselves of the qualification of their representative, and of their opinion if his integrity and ability will supply the want of estate, there is better reason for contending, that it ought not prevail. Secondly, that by requiring a property qualification, it may happen, that men, the best qualified in other respects, might be incapacitated from serving their country. There is, doubtless, weight in each of these considerations. The first, however, is equally applicable to all sorts of qualifications whatsoever; and proceeds upon an inadmissible foundation; and that is, that the society has no just right to regulate for the common good, what a portion of the community may deem for their special good. The other reason has a better foundation in theory; though, generally speaking, it will rarely occur in practice. But it goes very far towards overturning another fundamental guard, which is deemed essential to public liberty; and that is, that the representative should have a common interest in measures with his constituents. Now, the power of taxation, one of the most delicate and important in human society, will rarely be exerted oppressively by those, who are to share the common burthens. The possession of property has in this respect a great value among the proper qualifications of a representative; since it will have a tendency to check any undue impositions, or sacrifices, which may equally injure his own, as well as theirs.
§ 621. In like manner there is a total absence of any qualification founded on religious opinions. However desirable it may be, that every government should be administered by those, who have a fixed religious belief, and feel a deep responsibility to an infinitely wise and eternal Being; and however strong may be our persuasion of the everlasting value of a belief in Christianity for our present, as well as our immortal welfare; the history of the world has shown the extreme dangers, as well as difficulties, of connecting the civil power with religious opinions. Half the calamities, with which the human race have been scourged, have arisen from the union of church and state; and the people of America, above all others, have too largely partaken of the terrors and the sufferings of persecution for conscience' sake, not to feel an excessive repugnance to the introduction of religious tests. Experience has demonstrated the folly, as well as the injustice, of exclusions from office, founded upon religious opinions. They have aggravated all other evils in the political organization of societies. They carry in their train discord, oppression, and bloodshed. They perpetuate a savage ferocity, and insensibility to human rights and sufferings. Wherever they have been abolished, they have introduced peace and moderation, and enlightened legislation. Wherever they have been perpetuated, they have always checked, and in many cases have overturned all the securities of public liberty. The right to burn heretics survived in England almost to the close of the reign of Charles the Second; and it has been asserted, (but I have not been able to ascertain the fact by examination of the printed journals,) that on that occasion the whole bench of bishops voted against the repeal. We all know how slowly the Roman Catholics have recovered their just rights in England and Ireland. The triumph has been but just achieved, after a most painful contest for a half century. In the catholic countries, to this very hour, protestants are, for the most part, treated with a cold and reluctant jealousy, tolerated perhaps, but never cherished. In the actual situation of the United States a union of the states would have been impracticable from the known diversity of religious sects, if any thing more, than a simple belief in Christianity in the most general form of expression, had been required. And even to this some of the states would have objected, as inconsistent with the fundamental policy of their own charters, constitutions, and laws. Whatever, indeed, may have been the desire of many persons, of a deep religious feeling, to have embodied some provision on this subject in the constitution, it may be safely affirmed, that hitherto the absence has not been felt, as an evil; and that while Christianity continues to be the belief of the enlightened, and wise, and pure, among the electors, it is impossible, that infidelity can find an easy home in the house of representatives.
§ 622. It has been justly observed, that under the reasonable qualifications established by the constitution, the door of this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or any particular profession of religious faith.
§ 623. A question, however, has been suggested upon this subject, which ought not to be passed over without notice. And that is, whether the states can superadd any qualifications to those prescribed by the constitution of the United States. The laws of some of the states have already required, that the representative should be a freeholder, and be resident within the district, for which he is chosen. If a state legislature has authority to pass laws to this effect, they may impose any other qualifications beyond those provided by the constitution, however inconvenient, restrictive, or even mischievous they may be to the interests of the Union. The legislature of one state may require, that none but a Deist, a Catholic, a Protestant, a Calvinist, or a Universalist, shall be a representative. The legislature of another state may require, that none shall be a representative but a planter, a farmer, a mechanic, or a manufacturer. It may exclude merchants, and divines, and physicians, and lawyers. Another legislature may require a high monied qualification, a freehold of great value, or personal estate of great amount. Another legislature may require, that the party shall have been born, and always lived in the state, or district; or that he shall be an inhabitant of a particular town or city, free of a corporation, or eldest son. In short, there is no end to the varieties of qualifications, which, without insisting upon extravagant cases, may be imagined. A state may, with the sole object of dissolving the Union, create qualifications so high, and so singular, that it shall become impracticable to elect any representative.
§ 624. It would seem but fair reasoning upon the plainest principles of interpretation, that when the constitution established certain qualifications, as necessary for office, it meant to exclude all others, as prerequisites. From the very nature of such a provision, the affirmation of these qualifications would seem to imply a negative of all others. And a doubt of this sort seems to have pervaded the mind of a learned commentator. A power to add new qualifications is certainly equivalent to a power to vary them. It adds to the aggregate, what changes the nature of the former requisites. The house of representatives seems to have acted upon this interpretation, and to have held, that the state legislatures have no power to prescribe new qualifications, unknown to the constitution of the United States. A celebrated American statesman [Jefferson], however, with his avowed devotion to state power, has intimated a contrary doctrine. "If," says he, "whenever the constitution assumes a single power out of many, which belong to the same subject, we should consider it as assuming the whole, it would vest the general government with a mass of powers never contemplated. On the contrary, the assumption of particular powers seems an exclusion of all not assumed. This reasoning appears to me to be sound, but on so recent a change of view, caution requires us not to be over confident." He intimates, however, that unless the case be either clear or urgent, it would be better to let it lie undisturbed.
§ 625. It does not seem to have occurred to this celebrated statesman, that the whole of this reasoning, which is avowedly founded upon that amendment to the constitution, which provides, that "the powers not delegated nor prohibited to the states, are reserved to the states respectively, or to the people," proceeds upon a basis, which is inapplicable to the case. In the first place, no powers could be reserved to the states, except those, which existed in the states before the constitution was adopted. The amendment does not profess, and indeed, did not intend to confer on the states any new powers; but merely to reserve to them, what were not conceded to the government of the Union. Now, it may properly be asked, where did the states get the power to appoint representatives in the national government? Was it a power, that existed at all before the constitution was adopted? If derived from the constitution, must it not be derived exactly under the qualifications established by the constitution, and none others? If the constitution has delegated no power to the states to add new qualifications, how can they claim any such power by the mere adoption of that instrument, which they did not before possess?
§ 626. The truth is, that the states can exercise no powers whatsoever, which exclusively spring out of the existence of the national government, which the constitution does not delegate to them. They have just as much right, and no more, to prescribe new qualifications for a representative, as they have for a president. Each is an officer of the Union, deriving his powers and qualifications from the constitution, and neither created by, dependent upon, nor controllable by, the states. It is no original prerogative of state power to appoint a representative, a senator, or president for the Union. Those officers owe their existence and functions to the united voice of the whole, not of a portion, of the people. Before a state can assert the right, it must show, that the constitution has delegated and recognised it. No state can say, that it has reserved, what it never possessed.
§ 627. Besides; independent of this, there is another fundamental objection to the reasoning. The whole scope of the argument is, to show, that the legislature of the state has a right to prescribe new qualifications. Now, if the state in its political capacity had it, it would not follow, that the legislature possessed it. That must depend upon the powers confided to the state legislature by its own constitution. A state, and the legislature of a state, are quite different political beings. Now it would be very desirable to know, in which part of any state constitution this authority, exclusively of a national character, is found delegated to any state legislature. But this is not all. The amendment does not reserve the powers to the states exclusively, as political bodies; for the language of the amendment is, that the powers not delegated, &c. are reserved to the states, or to the people. To justify, then, the exercise of the power by a state, it is indispensable to show, that it has not been reserved to the people of the state. The people of the state, by adopting the constitution, have declared what their will is, as to the qualifications for office. And here the maxim, if ever, must apply, Expressio unius est exclusio alterius. It might further be urged, that the constitution, being the act of the whole people of the United States, formed and fashioned according to their own views, it is not to be assumed, as the basis of any reasoning, that they have given any control over the functionaries created by it, to any state, beyond what is found in the text of the instrument. When such a control is asserted, it is matter of proof, not of assumption; it is matter to be established, as of right, and not to be exercised by usurpation, until it is displaced. The burthen of proof is on the state, and not on the government of the Union. The affirmative is to be established; the negative is not to be denied, and the denial taken for a concession.
§ 628. In regard to the power of a state to prescribe the qualification of inhabitancy or residence in a district, as an additional qualification, there is this forcible reason for denying it, that it is undertaking to act upon the very qualification prescribed by the constitution, as to inhabitancy in the state, and abridging its operation. It is precisely the same exercise of power on the part of the states, as if they should prescribe, that a representative should be forty years of age, and a citizen for ten years. In each case, the very qualification fixed by the constitution is completely evaded, and indirectly abolished.
Story, Joseph. Commentaries on the Constitution of the United States. 3 vols. Boston, 1833.
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