Congressional Candidacy, Incarceration, and the Constitution's Inhabitancy Qualifications

Publication Date: August 2002

Publisher: Library of Congress. Congressional Research Service

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Research Area: Law and ethics

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Abstract:

The issue of whether one is permitted to run for and hold office in the House of Representatives either after a felony conviction, and/or while incarcerated in prison, specifically involves a question of the qualifications, or disqualifications, to be a Representative in Congress. There are three, and only three “positive” qualifications for Representative in Congress set out in the United States Constitution: (1) age (25 years); (2) citizenship (7 years); and (3) inhabitancy (one must be an “inhabitant” of the State from which chosen “when elected”).

It is now well-settled that these three qualifications for office in the Constitution are the exclusive qualifications for Congress (and are not merely “minimum” qualifications), and that they are fixed and may not be supplemented by Congress nor by any State unilaterally. Specifically, there is no qualification in the Constitution that one not be a convicted felon (nor a “disqualification” for offenses other than in the14th Amendment for certain treasonous conduct by those who have taken an oath of office). Similarly, there is no qualification in the Constitution that a person, when elected to Congress, not be in prison. Furthermore, no State could permissibly implement such additional qualifications for federal office through election laws or ballot procedures. The Framers of the Constitution intentionally implemented a representative scheme whereby significant discretion is given and deference provided to the judgment and choice of the people as to whom they wish to have represent them in Congress. In this respect, the adage of the French political philosopher Joseph de Maistre might apply: “Every nation has the government it deserves.”

The existing constitutional qualifications do require one to be an “inhabitant” of the State from which chosen “when elected.” Does being placed in a prison facility outside of the State in which one is a candidate disqualify one from being an “inhabitant” of that first State? Congressional precedents, as well as the provision’s enactment history, indicate that “inhabitancy” is not to be interpreted in an overly strict or legalistic sense, but rather was meant to assure a real connection to the State from which elected. The development of the concept of “inhabitancy” in House qualifications cases indicates that the term appears to be somewhat akin to the legal concept of “domicile,” encompassing not only actions taken which evidence the establishment of a principal “home” in a State, but also recognizing a person’s intent. Physical presence in the State at the time of election is, of course, a significant factor for consideration, but is not necessarily the determining factor. When an individual had lived in a State previously but then had physically been away from that State, considerations relevant to determining “inhabitancy” in that first State might include whether one “had left there any of the insignia of a household establishment”; whether one retained a business in the first State; the location of one’s family; one’s intent to establish residency in the new State; one’s intent to return to the first State, both stated and “deduc[ed] from facts”; as well as physical presence or absence in the first State at the time of election. When one is out of one’s “home State” involuntarily at the time of election, that may certainly be a significant consideration in determining one’s intent with regard to inhabitancy.