896
Thomas, J., dissenting
The majority's only response is that my reading of the Constitution would permit States to use their qualification-setting power to achieve the very result that Congress' "make or alter" power was designed to avoid. According to the majority, States could set qualifications so high that no candidate could meet them, and Congress would be powerless to do anything about it. Ante, at 811.
Even if the majority were correct that Congress could not nullify impossible qualifications, however, the Constitution itself proscribes such state laws. The majority surely would concede that under the Framers' Constitution, each state legislature had an affirmative duty to appoint two people to the Senate. See Art. I, § 3, cl. 1 ("The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof . . ." (emphasis added)); cf. Art. I, § 3, cl. 2 ("if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies"). In exactly the same way that § 3 requires the States to send people to the Senate, § 2 also requires the States to send people to the House. See Art. I, § 2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second Year by the People of the several States . . ."); cf. Art. I, § 2, cl. 4 ("When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies").
The majority apparently is concerned that (on its reading of the "make or alter" power) Congress would not be able to enforce the constitutional proscription on impossible qualifications; enforcement would instead be relegated to the courts, the Executive Branch, or the political process. But this concern is equally applicable whether one adopts my view of the Qualifications Clauses or the majority's view. Both the majority and I agree that it is unconstitutional for
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