Clause 1. 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 requis...
Clause 1. Congressional Districting
Clause 1. 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.
A major innovation in constitutional law in recent years has been the development of a requirement that election districts in each State be so structured that each elected representative should represent substantially equal populations.
Court involvement in this issue developed slowly. In our early history, state congressional delegations were generally elected at-large instead of by districts, and even when Congress required single-member districting
For the Court in Wesberry,
The most important issue, of course, was how strict a standard of equality the Court would adhere to. At first, the Justices seemed inclined to some form of de minimis rule with a requirement that the State present a principled justification for the deviations from equality which any districting plan presented.
Illustrating the strictness of the standard, the Court upheld a lower court voiding of a Texas congressional districting plan in which the population difference between the most and least populous districts was 19,275 persons and the average deviation from the ideally populated district was 3,421 persons.
Attacks on partisan gerrymandering have proceeded under equal-protection analysis, and, while the Court has held justiciable claims of denial of effective representation, the standards are so high neither voters nor minority parties have yet benefitted from the development.
It was the original constitutional scheme to vest the determination of qualifications for electors in congressional elections
Notwithstanding the vesting of discretion to prescribe voting qualifications in the States, conceptually the right to vote for United States Representatives is derived from the Federal Constitution,
Clause 2. Qualifications of Members of Congress
Clause 2. 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 the State in which he shall be chosen.
When the Qualifications Must Be Possessed
A question much disputed but now seemingly settled is whether a condition of eligibility must exist at the time of the election or whether it is sufficient that eligibility exist when the Member-elect presents himself to take the oath of office. While the language of the clause expressly makes residency in the State a condition at the time of election, it now appears established in congressional practice that the age and citizenship qualifications need only be met when the Member-elect is to be sworn.
Exclusivity of Constitutional Qualifications
Congressional Additions.-Writing in The Federalist with reference to the election of Members of Congress, Hamilton firmly stated that "[t]he qualifications of the persons who may . . . be chosen . . . are defined and fixed in the constitution; and are unalterable by the legislature."
Powell was excluded from the 90th Congress on grounds that he had asserted an unwarranted privilege and immunity from the process of a state court, that he had wrongfully diverted House funds for his own uses, and that he had made false reports on the expenditures of foreign currency.
Further, the Court observed that the early practice of Congress, with many of the Framers serving, was consistently limited to the view that exclusion could be exercised only with regard to a Member-elect failing to meet a qualification expressly prescribed in the Constitution. Not until the Civil War did contrary precedents appear, and later practice was mixed.
The result in the Powell case had been foreshadowed earlier when the Court held that the exclusion of a Member-elect by a state legislature because of objections he had uttered to certain national policies constituted a violation of the First Amendment and was void.
State Additions.-However much Congress may have deviated from the principle that the qualifications listed in the Constitution are exclusive when the issue has been congressional enlargement of those qualifications, it has been uniform in rejecting efforts by the States to enlarge the qualifications. Thus, the House in 1807 seated a Member-elect who was challenged as not being in compliance with a state law imposing a twelve-month durational residency requirement in the district, rather than the federal requirement of being an inhabitant of the State at the time of election; the state requirement, the House resolved, was unconstitutional.
The Supreme Court reached the same conclusion as to state power, albeit by a surprisingly close 5-4 vote, in U.S. Term Limits, Inc. v. Thornton.
Both majority and dissenting opinions in Thornton were richly embellished with disputatious arguments about the text of the Constitution, the history of its drafting and ratification, and the practices of Congress and the States in the nation's early years,
In the dissent's view, the Constitution was the result of the resolution of the peoples of the separate States to create the National Government. The conclusion to be drawn from this was that the peoples in the States agreed to surrender only those powers expressly forbidden them and those limited powers that they had delegated to the Federal Government expressly or by necessary implication. They retained all other powers and still retain them. Thus, "where the Constitution is silent about the exercise of a particular power-that is, where the Constitution does not speak either expressly or by necessary implication-the Federal Government lacks that power and the States enjoy it."
The majority's views were radically different. After the adoption of the Constitution, the states had two kinds of powers: reserved powers that they had before the founding and that were not surrendered to the Federal Government, and those powers delegated to them by the Constitution. It followed that the States could have no reserved powers with respect to the Federal Government. "As Justice Story recognized, '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.... No state can say, that it has reserved, what it never possessed.'"
Evidently, the opinions in this case reflect more than a decision on this particular dispute. They rather represent conflicting philosophies within the Court respecting the scope of national power in relation to the States, an issue at the core of many controversies today.
Clause 3. Apportionment of Seats in the House
Clause 3. [Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons].
The Census Requirement
The Census Clause "reflects several important constitutional determinations: that comparative state political power in the House would reflect comparative population, not comparative wealth; that comparative power would shift every 10 years to reflect population changes; that federal tax authority would rest upon the same base; and that Congress, not the States, would determine the manner of conducting the census."
While the Census Clause expressly provides for an enumeration of persons, Congress has expanded the scope of the census by including not only the free persons in the States, but also those in the territories, and by requiring all persons over eighteen years of age to answer an ever-lengthening list of inquiries concerning their personal and economic affairs. This extended scope of the census has received the implied approval of the Supreme Court,
Although taking an enlarged view of its census power, Congress has not always complied with its positive mandate to re-apportion representatives among the States after the census is taken.
While requiring the election of Representatives by districts, Congress has left it to the States to draw district boundaries. This has occasioned a number of disputes. In Ohio ex rel.
Davis v. Hildebrant,
Clause 4. Vacancies
Clause 4. When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.
The Supreme Court has not interpreted this clause.
Clause 5. Officers and Power of Impeachment
Clause 5. The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.
See analysis of Impeachment under Article II, section 4.
This document cites
- US Code - 2 U.S.C. § 2a - Reapportionment of Representatives; time and manner; existing decennial census figures as basis; statement by President; duty of clerk
See other documents that cite the same legislation