By James Finck, Ph.D.
After creating a bicameral Legislature and authorizing it as the only body capable of making laws in Section I of Article I, the Constitution goes on to create Congress. In Article I, Section II the Constitution defines the House of Representatives.
Section II, Clause I states, “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”
This clause starts off relatively easy to understand.
Members of the House serve two-year terms.
Later it will be shown that all elected officials serve different lengths: House for two, Senate for six, and the president for four.
This difference in terms makes it so not all elected officials are chosen at the same time. Also note there is nothing about districts.
That is a 20th century invention. In the beginning all representatives were voted at-large.
Chosen “by the People” is an important line as it is the only place this appears in the original Constitution. We tend to give the Constitution much more democracy then actually exists.
As we will see this is the only place in the original Constitution where elected officials are chosen by the people, nowhere else.
The second part of the clause deals with who can vote. This is often confusing because states determine voting requirements, but Section IV says that federal laws trump state laws.
In other words, states can determine who can vote if it does not go against a federal law. An example today is a state could decide to allow 16-year-olds to vote but cannot move the voting age to 20 because that would go against a federal law saying 18-year-olds can vote. A good historical example of this is when Wyoming gave women the right to vote in 1869, perfectly legal under the Constitution even though the rest of the nation still forbade it. Now with the 19th Amendment, all states must let women vote.
There is a catch to who can vote. “Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” What this means is that almost every state had a bicameral legislature and that the requirements to vote for the larger of the two state houses had to be the same for who could vote for House of Representatives. You could not add property requirements to vote for one office and not the other, state and federal voting must be the same.
As a side note, and this goes against current rhetoric, but in 1789 when the Constitution was ratified, almost none, if any states, outlawed Blacks from voting. There were some laws in colonial times disenfranchising Black voters, but most of those were repealed. The issue was all the states had property requirements to vote. As so few Black men held property, there was no need to outlaw Black men from casting their ballots.
At least in the North, there were some Black men who did vote. It was not until the 1820s, when states began dropping property requirements, that states realized Black men could vote and so began passing racial laws. So, when the nation was founded, if they owned property, both Black and white men could vote.
Eventually property requirements for voting were stripped away by the states and were replaced by laws that allowed only white men to vote. Those laws were later overturned by the 15th Amendment.
In Section II, Clause II it states, “No Person shall be a Representative who shall not have attained to the age of twenty-five years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.” What you will probably notice first is the lack of qualifications.
There are only three: 25 years of age, a citizen for seven years and currently live in the state. This lack of qualifications was done very deliberately. In Federalists Papers No. 52, it was either James Madison or Alexander Hamilton who wrote, “A representative of the United States must be of the age of twenty-five years; must have been seven years a citizen of the United States; must, at the time of his election, be an inhabitant of the State he is to represent; and, during the time of his service, must be in no office under the United States. Under these reasonable limitations, the door of this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith.”
Personally, I love that the main restriction is merit.
The Founding Fathers felt that 25 was important to be mature enough and being a citizen for seven years they were not influenced too much by their old nation. If 25 seems young, remember that when the Constitution was written Madison was only 36 and Hamilton only 30.
It is also important to note that, with this clause, states are not allowed to add their own qualifications for representatives of the House. In 1790 Maryland passed a law requiring candidates to live there for a year before being eligible to run for the House. In 1807 a man named William McCreery won a congressional seat but was challenged by his competitor that he did not have residency for the past year.
Ultimately a congressional committee overseeing the appeal dismissed the claim on the grounds that Maryland did not have the right to add qualifications for a federal office.
While the McCreery episode was a committee ruling, the idea became law in 1969 with the Powell v. Mc-Cormack U.S. Supreme Court case. In 1966 Adam Clayton Powell Jr. was reelected to his congressional seat even though he was embroiled in controversy over allegations of misappropriated congressional travel funds.
When Powell arrived at the next session of Congress, he was denied his seat, and an investigation was launched.
The Court ruled that Powell met all the qualifications of the Constitution, was duly elected, and that no other qualifications can be placed on a Representative.
Finally, there is the case of U.S. Term Limits Inc. v.
Thornton. Several states had passed term limits in their states for members of Congress. In 1992 when Arkansas passed a similar law, it was sued by Ray Thornton claiming the law unconstitutional. In 1995 the Supreme Court agreed with Thornton, citing that states cannot impose qualifications stricter than those the Constitution specifies.
There are many today calling for term limits for Congress and many more today calling for an age limit. Both callings limit choice. Representatives should be based on merit. If an 80-year-old has merit and is elected by the people, a law should not restrict them. If you think about it, there are term and age limits built in. It’s the part that requires them to be elected every two years. We the people are the limit. If a candidate is too old, don’t elect them.
James Finck is a professor of American history at the University of Science and Arts of Oklahoma. He may be reached at HistoricallySpeaking1776@gmail.com.