Article 1, Section 2.1

The Constitution gets referenced a lot in public discourse, and everyone is sure it supports their view. I suspect most of them don’t know what they’re talking about. Then I realized, I don’t know what I’m talking about. The Constitution is only a few pages long, but few Americans have actually read it. I read it through for the first time on Memorial Day, and now I’m going back through it, carefully, paragraph by paragraph, to make sure I understand it. After all, we should all be Constitutional scholars. 

Last week I read Article 1, Section 1, which establishes a bicameral congress in only one paragraph. (By the way, if anyone has suggestions for informative post titles that are less boring than “2.1” please share!)  Today, I’ll look at Article 1, Section 2: Paragraph 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.

So the framers established that Congress will consist of a Senate and a House of Representatives, and in the next paragraph (this one), they start to define the House of Representatives.

  1. members are chosen every other year
  2. elected by the people in the states
  3. Electors must have the right qualifications for the most numerous branch of state legislature

It seems so simple when you’re reading it. Then the questions start. (Warning, 1200 words ahead. Scroll to the bottom for TL;DR summary, if you must.)

  1. Members chosen every second year

    Does this mean Representatives serve two-year terms? Yes. Per the House website:

    each representative is elected to a two-year term serving the people of a specific congressional district.

    It’s not spelled out in the Constitution, but since we’re on the topic, elections are held during even-numbered years and every Representative is up for election every time (no staggered elections). The framers of the Constitution felt that frequent elections would cause House members to interact more and be more responsive to their constituents by having them return home to run for election every other year.

  2. By the people of the several states

    When I first read this phrase, I assumed it simply meant that Representatives were elected, rather than appointed by a government official, for example. But in studying my answers to questions below, I discovered that this phrase is SUPER important. I found several pages of case-law summaries indicating that it has been central to a century of litigation around congressional districting and the battle against gerrymandering. This is a critical and timely issue, as recent presidential election results can be explained by districting shenanigans. Okay, granted, we’re talking Congressional districts here, not electoral college, but the point remains that decisions which seem to be procedural minutia can have far-reaching consequences. As citizens, we have a responsibility to untangle the details. But for now, let’s just be satisfied with the fact that “by the people of the several states” has contributed to a major, recent innovation in constitutional law – that is, the requirement that election districts in each state be structured to represent substantially
    equal populations. (In Wesberry v. Sanders, the Court held that “construed in its historical context, the command of Art. I, § 2, that Representatives be chosen ‘by the People of the several States’ means that as nearly as is practicable one man’s vote in a congressional election is to be worth as much as another’s.”) Potent stuff. “By the people” is like the patchouli oil of political language.

  3. Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature

    Confession: The word “Elector” threw me. Do they mean people who are elected to the House? Or do the mean the people who get to vote them, a la “electoral college”? Elector was not included in the vocabulary list on the website where I found the text of the document. I googled the definition and got:

e·lec·tor
əˈlektər/
noun
 1. a person who has the right to vote in an election
  1. synonyms: voter, member of the electorate, constituent

    “my thanks to the faithful electors who brought me to this place

In that case:

Voters in each State shall have the Qualifications requisite for voters of the most numerous Branch of the State Legislature.

Err, I’m still confused. If this is about voter qualifications, why aren’t any qualifications listed? And what do they mean “most numerous branch”? I found the annotated Constitution on Congress’ website, and looked up 1.2.1 there. (Man, I thought I was clever last week for spilling a few hundred words on Section 1 – they had more than 50 pages on it.)

Aha! Here we go. On page 115 of the annotated Constitution:

(I’ve removed footnotes for clarity, since they were impossible to format as I copied over)

ELECTOR QUALIFICATIONS
It was the original constitutional scheme to vest the determination
of qualifications for electors in congressional elections solely
in the discretion of the states, save only for the express requirement
that the states could prescribe no qualifications other than
those provided for voters for the more numerous branch of the legislature.
This language has never been expressly changed, but
the discretion of the states—and not only with regard to the quali-
fications of congressional electors—has long been circumscribed by
express constitutional limitations and by judicial decisions. Further,
beyond the limitation of discretion on the part of the states,
Congress has assumed the power, with judicial acquiescence, to legislate
to provide qualifications at least with regard to some elections.
Thus, in the Voting Rights Act of 1965 Congress legislated
changes of a limited nature in the literacy laws of some of
the States, and in the Voting Rights Act Amendments of 1970
Congress successfully lowered the minimum voting age in federal
elections and prescribed residency qualifications for presidential
elections, the Court striking down an attempt to lower the minimum
voting age for all elections. These developments greatly limited
the discretion granted in Article I, § 2, cl. 1, and are more fully
dealt with in the treatment of § 5 of the Fourteenth Amendment.
Notwithstanding the vesting of discretion to prescribe voting quali-
fications in the states, conceptually the right to vote for United States
Representatives is derived from the Federal Constitution, and Congress
has had the power under Article I, § 4, to legislate to protect
that right against both official and private denial.

Okay, that was wonky but – wow! Two paragraphs into the Constitution and we’re already talking about districting and voter suppression. In case your eyes glazed over, here’s what I got from the note above (and if your eyes didn’t glaze over, correct me if I’m wrong).

The main answer to my question about what the “qualifications” phrase means is given at the beginning of the note: It was the original constitutional scheme to vest the determination of qualifications for electors in congressional elections solely in the discretion of the states, save only for the express requirement that the states could prescribe no qualifications other than those provided for voters for the more numerous branch of the legislature.

In other words, the framers didn’t list the qualifications because they wanted the states to be able to make their own voter eligibility rules. The only thing they would say about it was that the states couldn’t make the requirements for voting for a federal Representative more restrictive than the rules to vote for state government. The rest of the note basically says that over time, Constitutional amendments and judicial case-law have added some new rules, primarily for the purpose of preventing voter suppression (for example, through literacy requirements).

Let me sum up

Well, it’s a little embarrassing that it took me more than 1200 words to explain 42 words. But the annotated Congressional version is even wonkier. So, TL;DR

The House of Representatives is elected by voters in each state every other year. Eligibility to vote for a Representative is the same as eligibility to vote in a state election.

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