882
Thomas, J., dissenting
to punish one of the Senators from its State for his vote on some bill, enacts a qualifications law that the Senator does not satisfy. The Senator would still be able to serve out his term; the Constitution provides for Senators to be chosen for 6-year terms, Art. I, § 3, cl. 1, and a person who has been seated in Congress can be removed only if two-thirds of the Members of his House vote to expel him, § 5, cl. 2. While the Senator would be disqualified from seeking reappointment, under the Framers' Constitution the state legislature already enjoyed unfettered discretion to deny him reappointment anyway. Instead of passing a qualifications law, the legislature could simply have passed a resolution declaring its intention to appoint someone else the next time around. Thus, the legislature's power to adopt laws to narrow its own choices added nothing to its general appointment power.
While it is easier to coordinate a majority of state legislators than to coordinate a majority of qualified voters, the basic principle should be the same in both contexts. Just as the state legislature enjoyed virtually unfettered discretion over whom to appoint to the Senate under Art. I, § 3, so the qualified voters of the State enjoyed virtually unfettered discretion over whom to elect to the House of Representatives under Art. I, § 2. If there is no reason to believe that the Framers' Constitution barred state legislatures from adopting prospective rules to narrow their choices for Senator, then there is also no reason to believe that it barred the people of the States from adopting prospective rules to narrow their choices for Representative. In addition, there surely is no reason to believe that the Senate Qualifications Clause suddenly acquired an exclusivity provision in 1913, when the Seventeenth Amendment was adopted. Now that the people of the States are charged with choosing both Senators and Representatives, it follows that they may adopt eligibility requirements for Senators as well as for Representatives.
Page: Index Previous 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 NextLast modified: October 4, 2007