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THE RIGHT OF THE SENATE TO DETERMINE THE QUALIFICATIONS OF
PRICE WICKERSHAM, of the Kansas City, Mo., bar
HAS THE UNITED STATES SENATE PLENARY POWER TO REJECT A SENATOR ELECT?
I. CONSIDERATION OF THE CONSTITUTION
1. Pertinent clauses.
2. The language is in the negative; in preliminary drafts of the Constitution the language was in the affirmative,
3. The requirements of age, citizenship, and residence are not “qualifications” but “disqualifications."
Section 2, Article I, of the United States Constitution provides:
No person shall be a Representative who shall not have attained the age of 25 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.
Section 3, Article I, provides that Senators shall be chosen by the legislature of each State, and that
No person shall be a Senator who shall not have attained the age of 30 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.
Section 5, Article I, provides:
Each House shall be the judge of the elections, returns, and qualifications of its own Members.
Each House may determine the rules of its proceedings, punish its Members for dis rderly behavior, and, with the concurrence of two-thirds, expel a Member.
The above are all of the pertinent provisions of the Federal Constitution.
It will be noted that section 5, Article I, is a grant of power without limitation in the section itself, and unless section 3 can be construed as a limitation of the grant of power, then it follows that the grant of power contained in section 5 is unlimited in the Constitution.
It will be noted that the language of section 3 is in the negative. This is an important fact. In the original drafts of the Constitution the language of this section was in the affirmative and was purposely changed to the negative. Congressman Taylor, of Ohio, on January 23, 1900 (Cong. Rec., p. 1075), in discussing this very issue said:
It is a notable fact that in the first draft of this constitutional provision which provided for qualification of Representatives in Congress the language was affirmative and positive, and that when it was finally presented for adoption it appeared in the form in which we now find it.
The slight contemporaneous discussion in the Constitutional Convention was upon the provision in the affirmative form. Why was it changed to the negative? Surely not for the sake of euphony. And certainly not to make it more explicitly exclusive,
In the report of the committee on detail,. submitting the first draft of tko Constitution, this section read in the affirmative as follows:
"Every Member of the House of Representatives shall be of the age of 25 years at least, shall have been a citizen of thie United States for at least three years before his election, and shall be at the tone of his election a resident of the State in which he shall be chosen.
In the discussion, Mr. Dickinson opposed the section altogether, expressly because it would be held excluslyė; saying he was
“Against any recitals of ginalifications in the Constitution. It was impossible to make a complete one, and a partial one would, by implication, tie up the hands of the legislature from supplying omissions."
Mr. Wilson took the same view, saying:
“Besides, a partial enumeration of cases will disable the legislature from disqualifying odions and dangerous characters.
The requirements of section 3 as to age, citizenship, and residence are not qualifications"; they are “disqualifications." This very question was discussed by John Randolph in Congress in 1807, and he said:
If the Constitution had meant (as was contended) to have settled the qualification of Members, its words would have naturally ran thus: “Every person who has attained the age of 25 years and been seven years a citizen of the United States, and who shall, when elected, be an inhabitant of the State from which he shall be chosen, shall be eligible to a seat in the House of Representatives.
But so far from fixing the qualifications of Members of that House, the Constitution merely enumerated a few disqualifications with which the States were left to act.
The same view was taken by Mr. Quincy and Mr. Key in the famous Maryland contested-election case reported in the Annual of Congress, volume 1808, at page 908.
Sections 5 and 3, taken together and properly paraphrased to get the true meaning, would read:
The Senate shall be the judge of the elections, returns, and qualifications of its own Members, but no person shall be a Senator who shall not have attained the age of 30 years and has not 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.
This construction of "negative" clauses is upheld by the courts The case of Darrow v. The People (8 Colo. 417) is in point. A statute of Colorado made the payment of taxes a necessary qualification for membership in a board of aldermen. There was a provision of the Colorado constitution that "no person except a qualified elector shall be elected or appointed to any civil or military office in the State.” The court said:
It is argued that this provision by implication inhibits the legislature from adding the property qualifications under consideration. There is nothing in the constitution which expressly designates the qualifications of councilmen in a city or town, and this section contains the only language that can possibly be construed as applicable thereto. But it will be observed that the language used in negative in form--that it simply prohibits the election or appointment to office of one not a qualified elector. There is no conflict between it and the statute.
There is no conflict between section 5 which is a full grant of power to the Senate and section 3 which simply prohibits the seating of a person who has not the three requisites of age, citizenship, and residence.
II. CONSIDERATION OF PROCEEDINGS OF CONSTITUTIONAL CONVENTION
1. Pertinent features of Randolph, Pinckney, and Hamilton plans. 2. Proceedings in Committee on the Whole August 10, 1787.
It is submitted that the above analysis of the language of the Constitution itself is determinative of the question under discussion. However, a brief survey of the proceedings of the Constitutional Convention may serve to make plain the intent of the framers of the Constitution, and this requires a brief analysis of the three major plans for a Federal Constitution that were under consideration. It is necessary to know these plans, so far as this issue is concerned, in order to understand the proceedings which occurred when the cláuses in queston were under consideration. It is evident to the student of constitutional government that the Constitutional Convention used the structure of Parliament as a guide, in so far as this particular subject is concerned; it is likewise clear that the practice and proceedings of the House of Commons were, to say the feast, a guide. Burdick in his excellent work The Law of the American Constitution, page 168, says:
In confining to the Houses of Congress the right to judge the elections and qualifications of their own Members the framers of the Constitution were following the practice of the English House of Commons.
The three plans were submitted by Edmund Randolph, Alexander Hamilton, and Charles Pinckney, which plans will be discussed in their reverse order because Randolph's plan was the one that was in the main followed.
Charles Pinckney's plan:
ART. 5. Each State shall prescribe the time and manner of holding elections by the people for the House of Delegates, and the House of Delegates shall be the judges of the elections, returns, and qualifications of their members.
Under Pinckney's plan the Senate was to be elected by the House of Delegates. Pinckney was unqualifiedly in favor of removing the election of the Senators as far as possible from the people.
The convention met on May 11, 1787, and concluded its deliberations September 17 following About two weeks prior to the close of the convention Hamilton prepared his plan and furnished it to Mr. Madison, frankly saying that he did not expect that his plan would be adopted but that he had prepared it in order that it might serve as an ideal toward which the United States might eventually work. His plan provided:
ART. 2. The Assembly, shall consist of persons called Representatives, who shall be chosen, except in the first instance, by the free male citizens and inhabitants of the several States comprehended in the Union, all of whom of the age of 21 years and upward shall be entitled to an equal vote.
The plan also provided that the Senate was to be chosen by electors elected by citizens of the several States, who shall have certain property qualifications, and also:
The Senate shall choose its President and other officers; shall be judge of the qualifications and elections of its Members, etc.
No qualifications of any kind were prescribed in his plan for Senators and the only qualification for Members of the House of Delegates was that as to age above quoted in article 2.
It will be noted that the Senate, under Hamilton's plan, was given the power to "judge of the qualifications” of its Members without limitation as to any qualifications in the plan itself. Hamilton had sat all through the convention and heard all of the arguments that were advanced upon this subject, and it is significant that in the plan which he prepared toward the very close of the convention he in no manner limited the right of the Senate to judge of the qualifications of its Members.
Article 2 provided for a House of Delegates and Senate; article 4 provided that
The Senate shall be elected and chosen by the House of Delegates.
Article 7 provided that the Senate shall have the sole and exclusive power to declare war. This article and the one providing for the election of the Senate by the House of Delegates is cited to show that Randolph intended that the Senate should have extraordinary powers and that it should be far removed from the people themselves.
Article 5 provided :
And the House of Delegates shall be the judges of the election, returns, and qualifications of their Members.
When the question under his plan as to whether the House of Delegates should be chosen by the people direct was first voted on it carried by a vote of 5 to 2, two States being divided. There was much discussion during the convention as to the “qualification" or "prerequisites” as to age, citizenship, and residence in the several States, but there is very little reported as to the debate concerning the question at issue. It appears that shortly prior to August 10 the convention had directed the committee on detail to prepare a draft of a provision concerning property qualifications of Members of the Legislature, and accordingly, the committee reported the following draft:
SEC. 2. The Legislature of the United States shall have authority to establish such uniform qualifications of the Members of each House, with regard to property as to the said Legislature shall seem expedient.
Sec. 4. Each House shall be the judge of the elections, returns, and qualifications of its own Members.
On Friday, August 10, the following debate took place:
Mr. PINCKNEY. The committee, as he had considered, were instructed to report the proper qualifications of property for the Members of the National Legislature, instead of which they have referred the task to the National Legislature itself.
He thereupon argued for a property qualification.
Mr. Rutledge seconded the motion. Upon a viva voce vote the proposition was overwhelmingly defeated.
Mr. Madison then argued against the section.
Mr. Ellsworth agreed that the power given by the section was exceptional, but contended that it was not dangerous.
Thereupon Mr. Morris moved to strike out the words "with regard to property,” in order to leave the Legislature entirely at large.
Mr. Williamson. This would surely never be admitted should a majority of the Legislature be composed of any particular description of men-of lawyers, for example, which is no improbable supposition—the future election might be secured to their own body.