Article 1, Section 2, Clause 2: Qualifications of Representatives

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.

The Qualifications of Members Clause seems straightforward, but there are some aspects of it worth touching on.

The qualifications are deliberately broad. There is a minimum age for Representatives, a requirement of having been a citizen for some years, and a very minimal requirement of a connection to the state whose people are being represented. The courts have consistently held that this list is exhaustive; neither Congress nor the states are permitted to add any additional qualifications. The only other check on who the people may choose to represent them is the rarely-invoked power of the House to expel a member (A.1 S.5 C.2), which is understood to also mean refusing to seat a member. We will discuss this in due course. In ruling that neither states nor Congress may add any additional qualifications, the courts have upheld the principle that the House represents the people of the United States, who are entitled to choose whom they will.

Neither States nor Congress can impose term limits. Imposition of such limits would require a Constitutional amendment. Representatives cannot be recalled before their term in  office has expired. The courts have ruled that states cannot even require Representatives to live in the district they represent, nor prohibit convicts or even prisoners from being elected as Representatives. However, the Courts have also ruled that states may charge candidates filing fees and require a certain number of signatures supporting their candidacy before they are placed on the ballot. These are not regarded as new qualifications, though they are absolute barriers to candidacy in the few states that forbid write-in candidates.

The minimum age qualification seems striking to us in four respects. First, it is well past the age at which a man in 1787 might have been expected to have served in the armed forces. The Framers seem not to have believed that “if a man is old enough to fight for his country, he is old enough to serve in its Congress.” Second, it is well past the age at which a promising student in 1787 would have completed college. Third, this is the earliest age at which modern neurophysiology has found that the frontal lobes of the brain, the seat of judgment, are fully developed. The Framers had no neurophysiology, yet they seem to have had a solid grasp of human nature. Fourth, the age is nonetheless remarkably young. There is no sense from this age limit that Representatives were to be possessed of older and wiser heads. They are representatives, not elders. The Framers wanted a council of elders, but this became the Senate, which we will examine in due course.

We note that most of the delegates to the Constitutional Convention were in their 30s or 40s. Of the 55 delegates to the Convention for whom we have ages, just four were in their twenties, and the youngest of these was 26. On the other hand, only 14 were over the age of 50, with Benjamin Franklin at 81 the oldest. (And he was 15 years older than the next oldest delegate.) This was in a country in which the median age was probably close to 20. (It is 38 today.)  Washington himself was 55 in 1787.  Madison was 36; Hamilton was 30; and John Jay was 42. Jay was not present at the Convention, being the Secretary of State of the Confederation at the time, but was one of the authors of The Federalist, arguing for ratification of the new Constitution.

Given that the country was still a country of immigrants in 1787, and that the successful immigrant was a respected figure, the requirement that a Representative be at least seven years a citizen of the United States had real teeth. We note that Alexander Hamilton was himself an immigrant, born in the British West Indies. Nevertheless, he was one of just eight delegates to the Convention who were not natural-born citizens. At the same time, a requirement of only seven years insured that newer citizens would have friends in Congress.

The requirement that a Representative be an inhabitant of the state from which he was elected is the weakest of the requirements. It is left up to the states to decide what constitutes an “inhabitant” of their state. Purchasing a home in Washington, D.C., while serving as a Representative, does not violate the residency requirement, since it is assumed he or she intends to return to his or her home state after leaving office.  Nor is there any real obstacle to moving to a new state or district in order to seek political office, other than the pejorative connotations of being a “carpetbagger.”

It may surprise some readers to learn that there is no mention of Congressional districts in the Constitution, which apportions Representatives to states by population but leaves the manner of election to Congress and the state legislators. Congress passed a single member district law in 1842, but this was simply ignored by some states. Not until 1967 did Congress pass a single member district law that actually stuck, though by then only Hawaii and New Mexico were still electing more than a single Representative at large.

Election at large has the consequence that a bare majority can elect an entire state’s slate of representatives to its liking. This tends towards the simple government that the Founders feared.  Senators are already elected at large, and so election of Representatives at large would erase an  important distinction in the manner the two chambers of Congress are elected. We therefore support the  Uniform Congressional District Act of 1967 requiring single-member districts.

This law has an interesting history. The burning issue at the time was racial gerrymandering, an obvious injustice, though one that had already been partially addressed in the Voting Rights Act of 1965. The Uniform Congressional District Act of 1967 had wide support but for a variety of reasons. Some politicians feared at-large elections, which took gerrymandering completely out of the picture but in a way that clearly disadvantaged racial or other political minorities. It has been suggested that others may have feared the adoption of proportional representation, which also took gerrymandering out of the picture but in a way that destroyed the tradition of first past the post.

For readers who are unclear on the concept of proportional voting, this is the notion that if 40% of the voters vote Republican and 60% vote Democratic, then 40% of the Representatives should be Republicans and 60% should be Democrats. More to the point, if 10% of the voters vote Libertarian, 10% of the Representatives should be Libertarian. This is in contrast to the first past the post system, in which individual candidates stand for election and the one winning the plurality of votes is elected. First past the post effectively shuts out small parties from any representation at all.

The views of the Founders may be inferred from the fact that Representatives are not just elected by “the People”, but by “the People of the several States”. They deliberately avoided a system of proportional representation at the national level. We believe this reflected a desire to give no formal recognition whatsoever to political parties in the Constitution, which recognition seems almost unavoidable in a system of proportional representation. We believe the Founders left the form of districting at the state level to the discretion of the states largely as a concession to particularism, with that power shared by Congress as a check on the states.

It may perhaps be possible for Congress or a state to come up with a scheme for proportional election of Representatives that conforms with the text of the Constitution. However, it would still be a bad idea. The first past the post approach to elections forces major parties towards the center, and this is a good thing. Much of the current difficulty in American politics arises from the fact that changes in communications technology and election laws have greatly weakened the ability of the major parties to tack towards the center. In fairness, part of the problem is also the real weakening of the American center.

Turning and turning in the widening gyre
The falcon cannot hear the falconer;
Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned;
The best lack all conviction, while the worst
Are full of passionate intensity.

Indeed, we argue that healthy elections are merely the ratification of a process that has already taken place during the campaign, of radical or otherwise unfit candidates being weeded out and the remaining candidates forced to adopt a stance of moderation and compromise. If this does not sound like the American electoral experience today, the sad conclusion should be obvious.