Constitution of the United States/Art. I/Sec. 3/Clause 3 Qualifications

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Constitutional Law Treatise
Table of Contents
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Constitutional Law Outline
The Preamble
Article I Legislative Branch
Art. I, Section 1 Legislative Vesting Clause
Art. I, Section 2 House of Representatives
Art. I, Section 3 Senate
Art. I, Section 4 Congress
Art. I, Section 5 Proceedings
Art. I, Section 6 Rights and Disabilities
Art. I, Section 7 Legislation
Art. I, Section 8 Enumerated Powers
Art. I, Section 9 Powers Denied Congress
Art. I, Section 10 Powers Denied States
Article II Executive Branch
Art. II, Section 1 Function and Selection
Art. II, Section 2 Powers
Art. II, Section 3 Duties
Art. II, Section 4 Impeachment
Article III Judicial Branch
Art. III, Section 1 Vesting Clause
Art. III, Section 2 Justiciability
Art. III, Section 3 Treason
Article IV Relationships Between the States
Art. IV, Section 1 Full Faith and Credit Clause
Art. IV, Section 2 Interstate Comity
Art. IV, Section 3 New States and Federal Property
Art. IV, Section 4 Republican Form of Government
Article V Amending the Constitution
Article VI Supreme Law
Article VII Ratification
First Amendment: Fundamental Freedoms
Establishment Clause
Free Exercise Clause
Free Speech Clause
Freedom of Association
Second Amendment: Right to Bear Arms
Third Amendment: Quartering Soldiers
Fourth Amendment: Searches and Seizures
Fifth Amendment: Rights of Persons
Sixth Amendment: Rights in Criminal Prosecutions
Seventh Amendment: Civil Trial Rights
Eighth Amendment: Cruel and Unusual Punishment
Ninth Amendment: Unenumerated Rights
Tenth Amendment: Rights Reserved to the States and the People
Eleventh Amendment: Suits Against States
Twelfth Amendment: Election of President
Thirteenth Amendment: Abolition of Slavery
Thirteenth Amend., Section 1 Prohibition on Slavery and Involuntary Servitude
Thirteenth Amend., Section 2 Enforcement
Fourteenth Amendment: Equal Protection and Other Rights
Fourteenth Amend., Section 1 Rights
Fourteenth Amend., Section 2 Apportionment of Representation
Fourteenth Amend., Section 3 Disqualification from Holding Office
Fourteenth Amend., Section 4 Public Debt
Fourteenth Amend., Section 5 Enforcement
Fifteenth Amendment: Right of Citizens to Vote
Fifteenth Amend., Section 1 Right to Vote
Fifteenth Amend., Section 2 Enforcement
Sixteenth Amendment: Income Tax
Seventeenth Amendment: Popular Election of Senators
Eighteenth Amendment: Prohibition of Liquor
Eighteenth Amend., Section 1 Prohibition
Eighteenth Amend., Section 2 Enforcement of Prohibition
Eighteenth Amend., Section 3 Ratification Deadline
Nineteenth Amendment: Women's Suffrage
Twentieth Amendment: Presidential Term and Succession
Twentieth Amend., Section 1 Terms
Twentieth Amend., Section 2 Meetings of Congress
Twentieth Amend., Section 3 Succession
Twentieth Amend., Section 4 Congress and Presidential Succession
Twentieth Amend., Section 5 Effective Date
Twentieth Amend., Section 6 Ratification
Twenty-First Amendment: Repeal of Prohibition
Twenty-First Amend., Section 1 Repeal of Eighteenth Amendment
Twenty-First Amend., Section 2 Importation, Transportation, and Sale of Liquor
Twenty-First Amend., Section 3 Ratification Deadline
Twenty-Second Amendment: Presidential Term Limits
Twenty-Second Amend., Section 1 Limit
Twenty-Second Amend., Section 2 Ratification Deadline
Twenty-Third Amendment: District of Columbia Electors
Twenty-Third Amend., Section 1 Electors
Twenty-Third Amend., Section 2 Enforcement
Twenty-Fourth Amendment: Abolition of Poll Tax
Twenty-Fourth Amend., Section 1 Poll Tax
Twenty-Fourth Amend., Section 2 Enforcement
Twenty-Fifth Amendment: Presidential Vacancy
Twenty-Fifth Amend., Section 1 Presidential Vacancy
Twenty-Fifth Amend., Section 2 Vice President Vacancy
Twenty-Fifth Amend., Section 3 Declaration by President
Twenty-Fifth Amend., Section 4 Declaration by Vice President and Others
Twenty-Sixth Amendment: Reduction of Voting Age
Twenty-Sixth Amend., Section 1 Eighteen Years of Age
Twenty-Sixth Amend., Section 2 Enforcement
Twenty-Seventh Amendment: Congressional Compensation

Article I Legislative Branch

Section 3 Senate

Clause 3 Qualifications

Clause Text
No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

Overview of Senate Qualifications Clause[edit | edit source]

Under the Senate Qualifications Clause set forth at Article I, Section 3, Clause 3, Senators must be at least thirty years of age, a citizen for at least nine years, and an inhabitant of the state from which he or she is elected. While the Senate Qualifications Clause expressly requires inhabitancy at the time of the election, Congress has interpreted the Clause to require that Senators meet age and citizenship qualifications only at the time they take the oath of office.[1] Pursuant to Article I, Section 5, the Senate determines whether Senators-elect meet the required qualifications to be seated in the Senate.[2]

During the Constitutional Convention, the Framers adopted a minimum age requirement of thirty to ensure that Senators had sufficient maturity to perform their duties. Similarly, the Framers adopted a nine-year citizenship requirement to ensure that foreign-born Senators were loyal to, and knowledgeable about, the United States. Senate qualification requirements were more strenuous than those for the House, which required only that Members be twenty-five years of age and a citizen for at least seven years.[3] Alexander Hamilton explained the disparity in the Senate and House age requirements as due to "the nature of the senatorial trust, which requiring greater extent of information and ability of character, requires at the same time that the senator should have reached a period of life most likely to supply these advantages . . . ."[4]

Fixing the appropriate length of citizenship to be a Member of the Senate or House appears to have been the subject of significant debate at the Constitutional Convention, in part, because of the delegates' different backgrounds. Pennsylvania delegate James Wilson, an immigrant from Scotland, a signatory to the Declaration of Independence, and a future Supreme Court Justice, argued for a minimal citizenship requirement based on his personal experiences of having been precluded from office earlier in his career because of citizenship requirements.[5] Other delegates proposed much lengthier terms.[6]

Having considered terms ranging from four to fourteen years, the Framers' adoption of a nine-year requirement appears to have compromised conflicting views on the subject. Explaining the adoption of a nine-year term in the Federalist No. 62, Alexander Hamilton wrote: "The term of nine years appears to be a prudent mediocrity between a total exclusion of adopted citizens, whose merits and talents may claim a share in the public confidence, and an indiscriminate and hasty admission of them, which might create a channel for foreign influence in the national councils."[7] Hamilton stressed the Senate's role in foreign affairs as further justifying a longer citizenship requirement, stating that "participating immediately in transactions with foreign nations, ought to be exercised by none who are not thoroughly weaned from the prepossessions and habits incident to foreign birth and education."[8]

By adopting an inhabitancy requirement, the Framers sought to ensure that Senators would represent the interests of their states.[9] In his Commentaries on the Constitution of the United States, Justice Joseph Story noted "[I]t is manifestly proper, that a state should be represented by one, who, besides an intimate knowledge of all its wants and wishes, and local pursuits, should have a personal and immediate interest in all measures touching its sovereignty."[10]

When Senate Qualifications Requirements Must Be Met[edit | edit source]

While the Senate Qualifications Clause expressly requires a Senator-elect to reside in the state from which he is elected at the time of the election, it is less clear when a Senator-elect must meet the age and citizenship requirements. However, in 1935, the Senate established that a Senator-elect must only meet age and citizenship qualifications at the time he or she takes the oath of office.[11]

In 1935, the Senate considered when a Senator-elect must meet the qualification requirements when former Senator Henry D. Hatfield of West Virginia and various West Virginia citizens challenged the seating of Senator-elect Rush Holt of West Virginia on the grounds that he had been elected to the Senate at the age of twenty-nine.[12] While Senator-elect Holt acknowledged that he had not been thirty at the time of the general election on November 7, 1934, or at the convening of the Seventy-Ninth Congress on January 3, 1935, he argued that he met the Senate qualification requirements because he did not seek to take the oath of office until after he turned thirty on July 19, 1935.[13] In finding that Senator-elect Holt was entitled to the seat, the Committee on Privileges and Elections considered House of Representatives practices.[14] The Committee observed that while Rep. John Young Brown of Kentucky was elected to the Thirty-Sixth Congress despite being underage, he qualified for a seat because he had waited until he was twenty-five to take the oath of office.[15] Similarly, the Committee noted that while Austrian immigrant Henry Ellenbogen of Pennsylvania was elected to the House of Representatives in 1932 and his term began on March 4, 1933, Rep. Ellenbogen had waited until January 3, 1934 to take his oath of office and be seated in order to comply with the citizenship requirement.[16]

The Committee on Privileges and Elections also noted that Senators Henry Clay of Kentucky, Armistead Mason of Virginia, and John Eaton of Tennessee had been elected and "assumed the duties of the senatorial office before they were 30 years of age," but concluded that their examples were not precedential as no one had challenged their seats in the Senate.[17] In contrast, Albert Gallatin of Pennsylvania and General James A. Shields of Illinois were elected to the Senate, but were denied their seats because they did not meet the citizenship requirement.[18] The Committee on Privileges and Elections distinguished Gallatin and Shields from Holt on the grounds that they had taken their seats despite not having met the citizenship requirement whereas Holt "'was 30 years of age at the time when he presented himself to the Senate to take the oath and to assume the duties of the office.'"[19]

Ultimately, the Senate voted 62-17 in favor of Senator-elect Holt taking the oath of office.[20] Consequently, the Senate has allowed Senators to be seated once they meet age and citizenship qualification requirements rather than requiring them to have met those requirements at the time of the election or at the beginning of the session of Congress for which they were elected.

Congress's Ability to Change Qualifications Requirements for Senate[edit | edit source]

The Supreme Court has held that Congress cannot legislate changes to Article I, Section 3, Clause 3 qualification requirements, which require a Senator to be at least thirty years of age, a United States citizen for nine years, and an inhabitant of the state from which he or she is elected.[21]

During the Constitutional Convention, the Framers had debated whether Congress should have discretion to adopt additional qualification requirements for congressional membership but ultimately decided that such discretion would be too vulnerable to manipulation and might cause otherwise qualified persons to be excluded from Congress.[22] In particular, the Framers considered including a property requirement but the committee charged with recommending an appropriate amount could not agree and instead proposed that Congress decide.[23] Rejecting granting Congress power to determine qualifications for membership, James Madison reasoned:

The qualifications of electors and elected were fundamental articles in a Republican Govt. and ought to be fixed by the Constitution. If the Legislature could regulate those of either, it can by degrees subvert the Constitution. . . . Qualifications founded on artificial distinctions may be devised, by the stronger in order to keep out partizans [sic] of [a weaker] faction.Id. at 250-51.

Similarly, in the Federalist No. 60, Alexander Hamilton emphasized that stipulating qualification requirements in the Constitution would preclude wealthy citizens from using their influence to add property ownership criteria to be a Member of Congress at a later date.[24]

Until the Civil War, Congress appears to have generally conformed to the position adopted by Hamilton that the Constitution fixed the qualification requirements for membership in the Senate. But in July 1862, Congress passed a law requiring all persons appointed or elected to the United States Government to take an oath--known as the "Ironclad Test Oath"--that they had never been, nor ever would be, disloyal to the United States Government.[25] Subsequently, the Senate denied seats to certain Senators-elect following the Civil War. For instance, in 1868, the Senate voted to deny a seat to Philip F. Thomas of Maryland for "having voluntarily given aid, countenance, and encouragement to persons engaged in armed hostility to the United States . . . ."[26]

In 1969, the Supreme Court held in Powell v. McCormack that the House of Representatives could not impose additional qualification requirements.[27] In 1995, the Supreme Court revisited Powell more broadly in U.S. Term Limits, Inc. v. Thornton where it considered whether States could impose additional qualifications for membership in the House of Representatives and Senate.[28] In holding that the States could not, the Court reaffirmed its Powell holding as broadly applicable to Congress. The Court stated: "[W]e reaffirm that the qualifications for service in Congress are 'fixed,' at least in the sense that they may not be supplemented by Congress."[29] Consequently, Congress cannot legislate changes to the Senate's qualification requirements.

States' Ability to Change Qualifications Requirements for Senate[edit | edit source]

In 1969, the Supreme Court established in Powell v. McCormack,[30] that the House of Representatives could not consider qualifications other than those set forth in Article I, Section 2, Clause 2 of the Constitution when judging whether Members-elect qualified for a seat in the House.[31] In 1995, the Supreme Court extended its Powell ruling in U.S. Term Limits, Inc. v. Thornton to hold that States cannot impose qualification requirements on membership in Congress.[32]

The Supreme Court's Thornton ruling was consistent with the established congressional practice of not weighing state-added qualification requirements when considering whether Senators-elect qualified for Senate seats. In determining the eligibility of Senators-elect, the Senate appears to have conformed to Hamilton's position in the Federalist No. 60 that the Constitution fixed the qualification requirements for Senators. Accordingly, the Senate allowed Senators-elect who had violated state qualification requirements to be seated. For instance, in 1856, the Senate seated Lyman Trumbull of Illinois although he had violated the Illinois constitution which barred state judges, such as Trumbull, from standing for election while a judge or the following year.[33]

In Thornton, Arkansas, along with twenty-two other states limited the number of terms Members of Congress could serve.[34] Reexamining Powell and "its articulation of the 'basic principles of our democratic system,'" the Thornton Court reaffirmed that "the qualifications for service in Congress set forth in the Constitution are 'fixed'" in that Congress may not supplement them.[35] Powell, the Court found, however, did not conclusively resolve whether States had retained power to add qualification requirements for membership in Congress. Recognizing that the Framers clearly intended for the Constitution to be the exclusive source of congressional qualifications,[36] the Court reasoned that even if states had possessed some original power in this area, they had ceded that power to the Federal Government.[37] The Court, however, held that the power to add qualifications "is not within the 'original powers' of the states, and thus not reserved to the states by the Tenth Amendment."[38]

In reaching its decision, the Thornton Court explored the Constitution's text, drafting, and ratification, as well as early congressional and state practices.[39] Observing that state powers were either (1) reserved by states from the Federal Government under the Constitution or (2) delegated to states by the Federal Government, the majority reasoned that states could have no reserved powers that were derived from the federal government. Quoting Justice Joseph Story, the Court noted: "'[S]tates can exercise no powers whatsoever, which exclusively spring out of the existence of the national government, which the constitution does not delegate to them. . . . No state can say, that it has reserved, what it never possessed.'"[40] Because States could not have passed laws governing the National Government before the Nation's Founding and the Constitution did not delegate power to states to set qualifications for Members of Congress, the states could not have such power.[41]

Thornton clarified that changing qualification requirements for Congress must be accomplished by constitutional amendment.[42] In 2001, the Court relied on Thornton to invalidate a Missouri law requiring labels to be placed on ballots alongside the names of congressional candidates who had "disregarded voters' instruction on term limits" or declined to pledge support for term limits.[43]

  1. S. Res. 155, 79th Cong. (1935). See also 79 Cong. Rec. 9824-42 (June 21, 1935); 9 Cong. Rec. 9651-57 (June 19, 1935).
  2. Art. I, Sec. 5, Clause 1 Authority ("Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members.").
  3. Art. I, Sec. 2, Clause 2 Qualifications.
  4. The Federalist No. 62 (Alexander Hamilton). See also Joseph Story, Commentaries on the Constitution of the United States § 726 (1833) (explaining that the Roman senate had similar qualifications).
  5. Max Farrand, The Framing of the Constitution 137 (1913). A member of the Continental Congress and a leading legal scholar, James Wilson had immigrated to the colonies in 1765. 1 Collected Works of James Wilson xvi (Kermit L. Hall & Mark David Hall eds., 2007).
  6. See, e.g., 2 The Records of the Federal Convention of 1787, at 243 (1911) (Gouverneur Morris stating: "Foreigners will not learn our laws & Constitution under 14 yrs.--7 yrs must be applied to learn to be a Shoe Maker--14 at least are necessary to learn to be an Amer. Legislator--Again--that period will be requisite to eradicate the Affections of Education and native Attachments--").
  7. The Federalist No. 62 (Alexander Hamilton).
  8. Id. See also 2 Joseph Story, Commentaries on the Constitution of the United States § 728 (1833) (commenting that the citizenship requirement freed a naturalized Senator "from all prejudices, resentments, and partialities, in relation to the land of his nativity" and allowed him to "have acquired a thorough knowledge of the institutions and interests of a country").
  9. The Framers adopted the term "inhabitant" in favor of "resident" because, as understood at that time, "inhabitant" would not, in the words of James Madison, "exclude persons absent occasionally for a considerable time on public or private business." 2 The Records of the Federal Convention of 1787, at 217 (Max Farrand ed., 1911).
  10. 2 Joseph Story, Commentaries on the Constitution of the United States § 729 (1833).
  11. S. Res. 155, 79th Cong. (1935).
  12. 79 Cong. Rec. 9650 (June 19, 1935). Senator Hatfield, who was a Republican, had lost the November 7, 1934, general election to Senator-elect Holt, who was a Democrat.
  13. S. Rep. No. 904, 74th Cong., 1st Sess. (1935), as reprinted in 79 Cong. Rec. 9651-57 (June 19, 1935).
  14. Id. The Committee on Privileges and Elections considered three possible times at which a Senator-elect must have filled the requirement: (1) at the time of election, (2) at the time the congressional term commenced, or (3) at the time the Senator-elect took his oath of office. Id. at 9652.
  15. Id. at 9652 (citing Cong. Globe, 36th Cong., 1st Sess. 25, 31 and quoting from Jefferson's House Manual that "'A Member-elect not being of the required age, he was not enrolled by the Clerk and did not take the oath until he had reached the required age'").
  16. S. Rep. No. 904, 74th Cong., 1st Sess. (1935), as reprinted in 79 Cong. Rec. 9652 (June 19, 1935).
  17. Id. ("No objection was made to the seating of Henry Clay, and it appears that he himself was probably unaware of the age qualification. His case is not relied upon as precedent. Likewise, the case of Mason and Eaton are not cited as precedents because, no question having been raised, each of these cases is at most a mere physical precedent.").
  18. Id. at 9653. In the case of Shields, he subsequently won the special election to fill the Senate vacancy occasioned by his disqualification this time meeting the citizenship requirement.
  19. Id. at 9652 (quoting S. Res. 155, 79th Cong. (1935)). The minority on the Committee on Privileges and Elections argued that the standard should be commencement of the term for which the Senator was elected. Id. at 9653. Senator Hiram W. Johnson noted that prior Senate practice indicated that commencement of the term of office should be the date by which a Senator-elect must meet the qualification requirements. Id. at 9652.
  20. 79 Cong. Rec. 9842 (June 21, 1935).
  21. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 827 (1995) ("[T]he available historical and textual evidence, read in light of the basic principles of democracy underlying the Constitution and recognized by this Court in Powell, reveal the Framers' intent that neither Congress nor the States should possess the power to supplement the exclusive qualifications set forth in the text of the Constitution."). See Powell v. McCormack, 395 U.S. 486 (1969) (holding that Article I, Section 2, Clause 2 prevented the House of Representatives from adding qualification requirements for Article 1, Section 5 judgments). In Thornton, the Court "reaffirm[ed]" that "Powell's historical analysis and its articulation of the 'basic principles of our democratic system'" established that "the qualifications for service in Congress set forth in the text of the Constitution are 'fixed' at least in the sense that they may not be supplemented by Congress." Thornton, 514 U.S. at 798. See also Nixon v. United States, 506 U.S. 224, 237 (1993) ("[I]n light of the three requirements specified in the Constitution, the word 'qualifications'--of which the House was to be the Judge--was of a precise limited nature.").Unresolved is whether the reference to "Qualifications" in Article I, Section 5 includes other constitutional stipulations. In U.S. Term Limits, Inc. v. Thornton, the Court identified provisions that might be disqualifying: Art. I, Sec. 3, Clause 7 Impeachment Judgments (impeachment judgment against); id. art. I, § 6, cl. 2 (U.S. Government office holder); id. amdt. 14, (broke oath to support the Constitution through insurrection, rebellion, or assisting enemies); id. art. IV (Guarantee Clause); id. art. VI, cl. 3 (failed to swear to support the Constitution). Thornton, 514 U.S. at 787, n.2 (1995). The Court noted: In Powell, we saw no need to resolve the question whether those additional provisions constitute 'qualifications' because 'both sides agree that Powell was not ineligible under any of these provisions.' We similarly have no need to resolve that question today: Because these additional provisions are part of the text of the Constitution, they have little bearing on whether "Congress and the states may add qualifications to those that appear in the Constitution." Id. (citations omitted).
  22. 2 The Records of the Federal Convention of 1787, at 248-51 (Max Farrand ed.,1911).
  23. Id. at 248-49. Discussing the committee report, John Rutledge of Georgia, a future Supreme Court Justice, observed that "the Committee had reported no qualifications because they could not agree on any among themselves, being embarrassed by the danger on [one] side of displeasing the people by making them [high], and on the other of rendering them nugatory by making them low." Id. at 249.Oliver Ellsworth of Connecticut, another future Supreme Court Justice noted that: "The different circumstances of different parts of the U.S. and the probable difference between the present and future circumstances of the whole, render it improper to have either uniform or fixed qualifications. Make them so high as to be useful in the S. Sates, and they will be inapplicable to the E. States. Suit them to the latter, and they will serve no purpose in the former. In like manner what may be accommodated to the existing State of things among us, may be very inconvenient in some future state of them." Id.Benjamin Franklin objected to a property requirement based on "his dislike of every thing that tended to debase the spirit of the common people." Id. He stated: "If honesty was often the companion of wealth, and if poverty was exposed to peculiar temptation, it was not less true that the possession of property increased the desire of more property--Some of the greatest rogues he was ever acquainted with, were the richest rogues. We should remember the character which the Scripture requires in Rulers, that they should be men hating covetousness--This Constitution will be much read and attended to in Europe, and if it should betray a great partiality to the rich--will not only hurt us in esteem of the most liberal and enlightened men there, but discourage the common people from removing to this Country." Id.
  24. The Federalist No. 60 (Alexander Hamilton) ("[There is no method of securing to the rich the preference apprehended, but by prescribing qualifications of property either for those who may elect or be elected. But this forms no part of the power to be conferred on the national government. . . . The qualifications of the persons who may choose or be chosen . . . are defined and fixed in the Constitution, and are unalterable by the legislature."). See also The Federalist No. 52 (James Madison) (discussing the House Qualifications Clause and stating "[u]nder 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 or religious faith.").
  25. Act of July 2, 1862, 12 Stat. 502.
  26. 1 Hind's Precedents of the House of Representatives § 458 (1907). See also id. at § 477 (referring to "John M. Niles, Philip F. Thomas, and Benjamin Stark in the Senate, and the Kentucky cases and those of Whittemore and George Q. Cannon in the House" and noting "that the Senate and the House have taken the ground that they had the right to exclude for insanity, for disloyalty, and for crime, including polygamy, and as we believe, there is no case in either the House or the Senate, where the facts were not disputed, in which either the Senate or House has denied that it had the right to exclude a man, even though he had the three constitutional qualifications").
  27. Powell v. McCormack, 395 U.S. 486 (1969).
  28. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995).
  29. Id. at 798.
  30. Powell v. McCormack, 395 U.S. 486 (1969).
  31. Art. I, Sec. 5, Clause 1 Authority ("Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members . . . .").
  32. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995).
  33. Hind's Precedents of the House of Representatives § 416 (1907).
  34. All but two of the state initiatives to impose term limits were citizen initiatives. Thornton, 514 U.S. 779.
  35. Id. at 798.
  36. Id.
  37. Id. at 801.
  38. Id. at 800.
  39. See Kathleen M. Sullivan, Dueling Sovereignties: U.S. Term Limits, Inc. v. Thornton, 109 Harv. L. Rev. 78 (1995).
  40. Thornton, 514 U.S. at 802 (quoting Joseph Story, The Commentaries on the Constitution of the United States (1833)).
  41. Id. at 798-805. See also id. at 838-45 (Kennedy, J., concurring). The Court applied similar reasoning in Cook v. Gralike, 531 U.S. 510, 522-23 (2001), invalidating ballot labels identifying congressional candidates who had not pledged to support term limits. Because congressional offices arise from the Constitution, the Court explained, states would have had no authority to regulate these offices prior to the Constitution that they could have reserved, and the ballot labels were not a valid exercise of the power granted by Article I, § 4 to regulate the "manner" of holding elections.
  42. Id. at 837.
  43. Cook v. Gralike, 531 U.S. 510 (2001).