[Syllabus from pages 486-488 intentionally omitted]

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          Arthur Kinoy, New York City, and Herbert O. Reid, Washington, D.C., for petitioners.

          Bruce Bromley, New York City, for respondents.

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           Mr. Chief Justice WARREN delivered the opinion of the Court.

    In November 1966, petitioner Adam Clayton Powell, Jr., was duly elected from the 18th Congressional District of New York to serve in the United States House of Representatives for the 90th Congress. However, pursuant to a House resolution, he was not permitted to take his seat. Powell (and some of the voters of his district) then filed suit in Federal District Court, claiming that the House could exclude him only if it found he failed to meet the standing requirements of age, citizenship, and residence contained in Art. I, § 2, of the Constitution—requirements the House specifically found Powell met—and thus had excluded him unconstitutionally. The District Court dismissed petitioners' complaint 'for want of jurisdiction of the subject matter.' A panel of the Court of Appeals affirmed the dismissal, althougho n somewhat different grounds, each judge filing a separate opinion. We have determined that it was error to dismiss the complaint and that petitioner Powell is entitled to a declaratory judgment that he was unlawfully excluded from the 90th Congress.

  During the 89th Congress, a Special Subcommittee on Contracts of the Committee on House Administration conducted an investigation into the expenditures of the Committee on Education and Labor, of which petitioner

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Adam Clayton Powell, Jr., was chairman. The Special Subcommittee issued a report concluding that Powell and certain staff employees had deceived the House authorities as to travel expenses. The report also indicated there was strong evidence that certain illegal salary payments had been made to Powell's wife at his direction. See H.R. Rep. No. 2349, 89th Cong., 2d Sess., 6—7 (1966). No formal action was taken during the 89th Congress. However, prior to the organization of the 90th Congress, the Democratic members-elect met in caucus and voted to remove Powell as chairman of the Committee on Education and Labor. See H.R. Rep. No. 27 90th Cong., 1st Sess., 1—2 (1967).

          When the 90th Congress met to organize in January 1967, Powell was asked to step aside while the oath was administered to the other members-elect. Following the administration of the oath to the remaining members, the House discussed the procedure to be followed in determining whether Powell was eligible to take his seat. After some debate, by a vote of 363 to 65 the House adopted House Resolution No. 1, which provided that the Speaker appoint a Select Committee to determine Powell's eligibility. 113 Cong. Rec. 26—27. Although the resolution prohibited Powell from taking his seat until the House acted on the Select Committee's report, it did provide that he should receive all the pay and allowances due a member during the period.

          The Select Committee, composed of nine lawyer-members, issued an invitation to Powell to testify before the Committee. The invitation letter stated that the scope of the testimony and investigation would include Powell's qualifications as to age, citizenship, and residency; his involvement in a civil suit (in which he had been held in contempt); and '(m)atters of * * * alleged official misconduct since January 3, 1961.' See Hearings on

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H.R. Res. No. 1 before Select Committee Pursuant to H.R. Res. No. 1, 90th Cong., 1st Sess., 5 (1967) (hereinafter Hearings). Powell appeared at the Committee hearing held on February 8, 1967. After the Committee denied in part Powell's request that certain adversary-type procedures be followed,¹ Powell testified. He would, however, give information relating only to his age, citizenship, and residency; upon the advice of counsel, he refused to answer other questions.

          On February 10, 1967, the Select Committee issued another invitation to Powell. In the letter, the Select Committee informed Powell that its responsibility under the House Resolution extended to determining not only whether he met the standing qualifications of Art. I, § 2, but also to 'inquir(ing) into the question of whethr you should be punished or expelled pursuant to the powers granted * * * the House under Article I, Section 5, * * * of the Constitution. In other words, the Select Committee is of the opinion that at the conclusion of the present inquiry, it has authority to report back to the House recommendations with respect to * * * seating, expulsion or other punishment.' See Hearings 110. Powell did

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not appear at the next hearing, held February 14, 1967. However, his attorneys were present, and they informed the Committee that Powell would not testify about matters other than his eligibility under the standing qualifications of Art. I, § 2. Powell's attorneys reasserted Powell's contention that the standing qualifications were the exclusive requirements for membership, and they further urged that punishment or expulsion was not possible until a member had been seated. See Hearings 111—113.

          The Committee held one further hearing at which neither Powell nor his attorneys were present. Then, on February 23, 1967, the Committee issued its report, finding that Powell met the standing qualifications of Art. I, § 2. H.R.Rep. No. 27, 90th Cong., 1st Sess., 31 (1967). However, the Committee further reported that Powell had asserted an unwarranted privilege and immunity from the processes of the courts of New York; that he had wrongfully diverted House funds for the use of others and himself; and that he had made false reports on expenditures of foreign currency to the Committee on House Administration. Id., at 31—32. The Committee recommended that Powell be sworn and seated as a member of the 90th Congress but that he be censured by the House, fined $40,000 and be deprived of his seniority. Id., at 33.

          The report was presented to the House on March 1, 1967, and the House debated the Select Committee's proposed resolution. At the conclusion of the debate, by a vote of 222 of 202 the House rejected a motion to bring the resolution to a vote. An amendment to the resolution was then offered; it called for the exclusion of Powell and a declaration that his seat was vacant. The Speaker ruled that a majority vote of the House would be sufficient to pass the resolution if it were so

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amended 113 Cong.Rec. 5020. After further debate, the amendment was adopted by a vote of 248 to 176. Then the House adopted by a vote of 307 to 116 House Resolution No. 278 in its amended form, thereby excluding Powell and directing that the Speaker notify the Governor of New York that the seat was vacant.

          Powell and 13 voters of the 18th Congressional District of New York subsequently instituted this suit in the United States District Court for the District of Columbia. Five members of the House of Representatives were named as defendants individually and 'as representatives of a class of citizens who are presently serving * * * as members of the House of Representatives.' John W. McCormack was named in his official capacity as Speaker, and the Clerk of the House of Representatives, the Sergeant at Arms and the Doorkeeper were named individually and in their official capacities. The complaint alleged that House Resolution No. 278 violated the Constitution, specifically Art. I, § 2, cl. 1, because the resolution was inconsistent with the mandate that the members of the House shall be elected by the people of each State, and Art. I, § 2, cl. 2, which, petitioners alleged, sets forth the exclusive qualifications for membership.² The complaint further alleged that the Clerk of the House threatened to refuse to perform the service for Powell to which a duly elected Congressman is entitled, that the Sergeant at Arms refused to pay Powell his salary, and that the Doorkeeper threatened to deny Powell admission to the House chamber.

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          Petitioners asked that the three-judge court be convened.³ Further, they requested that the District Court grant a permanent injunction restraining respondents from executing the House Resolution, and enjoining the Speaker from refusing to administer the oath, the Clerk from refusing to perform the duties due a Representative, the Sergeant at Arms from refusing to pay Powell his salary, and the Doorkeeper from refusing to admit Powell to the Chamber.⁴ The complaint also requested a declaratory judgment that Powell's exclusion was unconstitutional.

          The District Court granted respondents' motion to dismiss the complaint 'for want of jurisdiction of the subject matter.' Powell v. McCormack, 266 F. Supp. 354 (D.C.D.C.1967).⁵ The Court of Appeals for the District of Columbia Circuit affirmed on somewhat different grounds, with each judge of the panel filing a separate opinion. Powell v. McCormack, 129 U.S.App.D.C. 354, 395 F.2d 577 (1968). We granted certiorari. 393 U.S. 949, 89 S.Ct. 371, 21 L.Ed.2d 361 (1968). While the case was pending on our docket, the 90th Congress officially terminated and the 91st Congress was seated. In November 1968, Powell was again elected as the representative of the 18th Congressional District of New York, and he was seated by the 91st Congress. The resolution seating Powell also

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fined him $25,000. See H.R.Res. No. 2, 91st Cong., 1st Sess., 15 Cong.Rec. H21 (daily ed., January 3, 1969). Respondents then filed a suggestion of mootness. We postponed further consideration of this suggestion to a hearing on the merits. 393 U.S. 1060, 89 S.Ct. 713, 21 L.Ed.2d 704 (1969).

          Respondents press upon us a variety of arguments to support the court below; they will be considered in the following order. (1) Events occurring subsequent to the grant of certiorari have rendered this litigation moot. (2) The Speech or Debate Clause of the Constitution, Art. I, § 6, insulates respondents' action from judicial review. (3) The decision to exclude petitioner Powell is supported by the power granted to the House of Representatives to expel a member. (4) This Court lacks subject matter jurisdiction over petitioners' action. (5) Even if subject matter jurisdiction is present, this litigation is not justiciable eitehr under the general criteria established by this Court or because a political question is involved.

          After certiorari was granted, respondents filed a memorandum suggesting that two events which occurred subsequent to our grant of certiorari require that the case be dismissed as moot. On January 3, 1969 the House of Representatives of the 90th Congress officially terminated, and petitioner Powell was seated as a member of the 91st Congress. 115 Cong.Rec. H22 (daily ed., January 3, 1969). Respondents insist that the gravamen of petitioners' complaint was the failure of the 90th Congress to seat Petitioner Powell and that, since the House of Representatives is not a continuing body⁶

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and Powell has now been seated, his claims are moot. Petitioners counter that three issues remain unresolved and thus this litigation presents a 'case o controversy' within the meaning of Art. III:⁷ (1) whether Powell was unconstitutionally deprived of his seniority by his exclusion from the 90th Congress; (2) whether the resolution of the 91st Congress imposing as 'punishment' a $25,000 fine is a continuation of respondents' allegedly unconstitutional exclusion, see H.R.Res. No. 2, 91st Cong., 1st Sess., 115 Cong.Rec. H21 (daily ed., January 3, 1969); and (3) whether Powell is entitled to salary withheld after his exclusion from the 90th Congress. We conclude that Powell's claim for back salary remains viable even though he has been seated in the 91st Congress and thus find it unnecessary to determine whether the other issues have become moot.⁸

          Simply stated, a case is moot when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome. See E. Borchard, Declara-

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tory Judgments 35—37 (2d ed. 1941). Where one of the several issues presented becomes moot, the remaining live issues supply the constitutional requirement of a case or controversy. See United Public Workers of America v. Mitchell, 330 U.S. 75, 86—94, 67 S.Ct. 556, 562, 566, 91 L.Ed. 754 (1947); 6A J. Moore, Federal Practice 57.13 (2d ed. 1966). Despite Powell's obvious and continuing interest in his withheld salary, respondents insist that Alejandrino v. Quezon, 271 U.S. 528, 46 S.Ct. 600, 70 L.Ed. 1071 (1926), leaves us no choice but to dismiss this litigation as moot. Alejandrino, a duly appointed Senator of the Philippine Islands, was suspended for one year by a resolution of the Philippine Senate and deprived of all 'prerogatives, privileges and emoluments' for the period of his suspension. The Supreme Court of the Philippines refused to enjoin the suspension. By the time the case reached this Court, the suspension had expired and the Court dismissed as moot Alejandrino's request that the suspension be enjoined. Then, sua sponte,⁹ the Court considered whether the possibility that Alejandrino was entitled to back salary required it 'to retain the case for the purpose of determining whether he (Alejandrino) may not have a mandamus for this purpose.' Id., at 533, 46 S.Ct. 601. Characerizing the issue of Alejandrino's salary as a 'mere incident' to his claim that the suspension was improper, the Court noted that he had not briefed the salary issue and that his request for mandamus did not set out with sufficient clarity the official or set of officials against whom the mandamus should issue. Id., at 533—54 , 46 S.Ct. at 601 602. The Court therefore refused to treat the salary claim and dismissed the entire action as moot.

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          Respondents believe that Powell's salary claim is also a 'mere incident' to his insistence that he was unconstitutionally excluded so that we should likewise dismiss this entire action as moot. This argument fails to grasp that the reason for the dismissal in Alejandrino was not that Alejandrino's deprivation of salary was insufficiently substantial to prevent the case from becoming moot, but rather that his failure to plead sufficient facts to establish his mandamus claim made it impossible for any court to resolve the mandamus request.¹⁰ By contrast, petitioners' complaint names the official responsible for the payment of congressional salaries and asks for both mandamus and an injunction against that official.¹¹

          Furthermore, even if respondents are correct that petitioners' averments as to injunctive relief are not sufficiently definite, it does not follow that this litigation must be dismissed as moot. Petitioner Powell has not been paid his salary by virtue of an allegedly unconstitional House resolution. That claim is still unresolved and hotly contested by clearly adverse parties. Declaratory relief has been requested, a form of relief not available

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when Alejandrino was decided.¹² A court may grant declaratory relief even though it chooses not to issue an injunction or mandamus. See United Public Workers of America v. Mitchell, supra, at 93, 67 S.Ct. 556, 566; cf. United States v. California, 332 U.S. 19, 25—26, 67 S.Ct. 1658, 1661—1662, 91 L.Ed. 1889 (1947). A declaratory judgment can then be used as a predicate to further relief, including an injunction. 28 U.S.C. § 2202; see Vermont Structural Slate Co. v. Tatko Brothers Slate Co., 253 F.2d 29 (C.A.2d Cir. 1958); United States Lines Co. v. Shaughnessy, 195 F.2d 385 (C.A.2d Cir. 1952). Alejandrino stands only for the proposition that, where one claim has become moot and the pleadings are insufficient to determine whether the plaintiff is entitled to another remedy, the action should be dismissed as moot.¹³ There is no suggestion that petitioners' averments as to declaratory relief are insufficient and Powell's allegedly unconstitutional deprivation of salary remains unresolved.

          Respondents furthe argue that Powell's 'wholly incidental and subordinate' demand for salary is insufficient to prevent this litigation from becoming moot. They suggest that the 'primary and principal relief' sought was the seating of petitioner Powell in the 90th Congress rendering his presumably secondary claims not worthy of judicial consideration. Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966), rejects respondents' theory that the mootness of a 'primary' claim requires a conclusion that all 'secondary' claims are moot. At the Bond oral argument it was suggested that the expiration of the session of the Georgia Legislature which excluded Bond had rendered

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the case moot. We replied: 'The State has not pressed this argument, and it could not do so, because the State has stipulated that if Bond succeeds on this appeal he will receive back salary for the term from which he was excluded.' 385 U.S., at 128, 87 S.Ct., at 345, n. 4. Bond is not controlling, argue respondents, because the legislative term from which Bond was excluded did not end until December 31, 1966,¹⁴ and our decision was rendered December 5; further, when Bond was decided, Bond had not as yet been seated while in this case Powell has been.¹⁵ Respondents do not tell us, however, why these factual distinctions create a legally significant difference between Bond and this case. We relied in Bond on the outstanding salary claim, not the facts respondents stress, to hold that the case was not moot.

          Finally, respondents seem to argue that Powell's proper action to recover salary is a suit in the Court of Claims, so that, having brought the wrong action, a dismissal for mootness is appropriate. The short answer to this argument is that it confuses mootness with whether Powell has established a right to recover against the Sergeant at Arms, a question which it is inappropriate to treat at this stage of the litigation.¹⁶

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          Respondents assert that the Speech or Debate Clause of the Constitution, Art. I, § 6,¹⁷ is an absolute bar to petitioners' action. This Court has on four prior occasions—Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967); United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966); Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951); and Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377 (1881)—been called upon to determine if allegedly unconstitutional action taken by legislators or legislatie employees is insulated from judicial review by the Speech or Debate Clause. Both parties insist that their respective positions find support in these cases and tender for decision three distinct issues: (1) whether respondents in participating in the exclusion of petitioner Powell were 'acting in the sphere of legitimate legislative activity,' Tenney v. Brandhove, supra, at 376, 71 S.Ct. at 788; (2) assuming that respondents were so acting, whether the fact that petitioners seek neither damages from any of the respondents nor a criminal prosecution lifts the bar of the clause;¹⁸ and (3) even if this

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action may not be maintained against a Congressman, whether those respondents who are merely employees of the House may plead the bar of the clause. We find it necessary to treat only the last of these issues.

          The Speech or Debate Clause, adopted by the Constitutional Convention without debate or opposition,¹⁹ finds its roots in the conflict between Parliament and the Crown culminating in the Glorious Revolution of 1688 and the English Bill of Rights of 1689.²⁰ Drawing upon this history, we concluded in United States v. Johnson, supra, at 181, 86 S.Ct. at 755, that the purpose of this clause was 'to prevent intimidation (of legislators) by the executive and accountability before a possibly hostile judiciary.' Although the clause sprang from a fear of seditious libel actions instituted by the Crown to punish unfavorable speeches made in Parliament,²¹ we have held that it would be a 'narrow view' to confine the protection of the Speech or Debate Clause to words spoken in debate. Committee reports, resolutions, and the act of voting are equally covered, as are 'things generally done in a session of the House by one of its members in relation to the business before it.' Kilbourn v. Thompson, supra, at 204. Furthermore, the clause not only provides a

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defense on the merits but also protects a legislator from the burden of defending himself. Dombrowski v. Eastland, supra, at 85, 87 S.Ct. at 1427; see Tenney v. Brandhove, supra, at 377, 71 S.Ct. at 788.

          Our cases make it clear that the legislative immunity created by the Speech or Debate Clause performs an important function in representative government. It insures that legislators are free to represent the interests of their constituents without fear that they will be later called to task in the courts for that representation. Thus, in Tenney v. Brandhove, supra, at 373, 71 S.Ct. at 786, the Court quoted the writings of James Wilson as illuminating the reason for legislative immunity: 'In order to enable and encourage a rp resentative of the publick to discharge his publick trust with firmness and success, it is indispensably necessary, that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one, however powerful, to whom the exercise of that liberty may occasion offense.'²²

          Legislative immunity does not, of course, bar all judicial review of legislative acts. That issue was settled by implication as early as 1803, see Marbury v. Madison, 1 Cranch (5 U.S.) 137, 2 L.Ed. 60, and expressly in Kilbourn v. Thompson, the first of this Court's cases interpreting the reach of the Speech or Debate Clause. Challenged in Kilbourn was the constitutionality of a House Resolution ordering the arrest and imprisonment of a recalcitrant witness who had refused to respond to a subpoena issued by a House investigating committee. While holding that the Speech or Debate Clause barred Kilbourn's action for false imprisonment brought against several members of the House, the Court nevertheless reached the merits of Kilbourn's attack and decided that, since the House had no power to punish for contempt, Kilbourn's imprisonment

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pursuant to the resolution was unconstitutional. It therefore allowed Kilbourn to bring his false imprisonment action against Thompson, the House's Sergeant at Arms, who had executed the warrant for Kilbourn's arrest.

          The Court first articulated in Kilbourn and followed in Dombrowski v. Eastland,²³ the doctrine that, although an action against a Congressman may be barred by the Speech or Debate Clause, legislative employees who participated in the unconstitutional activity are responsible for their acts. Despite the fact that petitioners brought this suit against several House employees—the Sergeant at Arms, the Doorkeeper and the Clerk—as well as several Congressmen, respondents argue that Kilbourn and Dombrowski are distinguishable. Conceding that in Kilbourn the presence of the Sergeant at Arms and in Dombrowski the presence of a congressional subcommittee counsel as defendants in the litigation allowed judicial review of the challenged congressional action, respondents urge that both cases concerned an affirmative act performed by the employee outside the House having a direct effect upon a private citizen. Here, they continue, the relief sought relates to actions taken by House agents solely within the House. Alternatively, respondents insist that Kilbourn and Dombrowski prayed for damages while petitioner Powell asks that the Sergeant at Arms disburse funds, an assertedly greater interference with the legislative process. We reject the proffered distinctions.

          That House employees are acting pursuant to express orders of the House does not bar judicial review of the constitutionality of the underlying legislative decision

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Kilbourn decisively settles this question, since the Sergeant at Arms was held liable for false imprisonment even though he did nothing more than execute the House Resolution that Kilbourn be arrested and imprisoned.²⁴ Respondents' suggestions thus ask us to distinguish between affirmative acts of House employees and situations in which the House orders its employees not to act or between actions for damages and claims for salary. We can find no basis in either the history of the Speech or Debate Clause or our cases for either distinction. The purpose of the protection afforded legislators is not to forestall judicial review of legislative action but to insure that legislators are not distracted from or hindered in the performance of their legislative tasks by being called into court to defend their actions A legislator is nom ore or no less hindered or distracted by litigation against a legislative employee calling into question the employee's affirmative action than he would be by a lawsuit questioning the employee's failure to act. Nor is the distraction or hindrance increased because the claim is for salary rather than damages, or because the litigation questions action taken by the employee within rather than without the House. Freedom of legislative activity and the purposes of the Speech or Debate Clause are fully protected if legislators are relieved of the burden of defending themselves.²⁵ In Kilbourn and Dombrowski

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we thus dismissed the action against members of Congress but did not regard the Speech or Debate Clause as a bar to reviewing the merits of the challenged congressional action since congressional employees were also sued. Similarly, though this action may be dismissed against the Congressmen petitioners are entitled to maintain their action against House employees and to judicial review of the propriety of the decision to exclude petitioner Powell.²⁶ As was said in Kilbourn, in language which time has not dimmed:

          'Especially is it competent and proper for this court to consider whether its (the legislature's) proceedings are in conformity with the Constitution and laws, because, living under a written constitution, no branch or department of the government is supreme; and it is the province and duty of the judicial department to determine in cases regularly brought before them, whether the powers of any branch of the government, and even those of the legislature in the enactment of laws, have been exercised in conformity to the Constitution; and if they have not, to treat their acts as null and void.' 103 U.S., at 199.

          The resolution excluding petitioner Powell was adopted by a vote in excess of two-thirds of the 434 Members of

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Congress—307 to 116. 113 Cong.Rec. 5037—5038, Article I, § 5, grants the House authority to expel a member 'with the Concurrence of two thirds.'²⁷ Respondents assert that the House may expel a member for any reason whatsoever and that, since a two-thirds vote was obtained, the procedure by which Powell was denied his seat in the 90th Congress should be regarded as an expulsion, not an exclusion. Cautioning us not to exalt form over substance, respondents quote from the concurring opinion of Judge McGowan in the court below:

          'Appellant Powell's cause of action for a judicially compelled seating thus boils down, in my view, to the narrow issue of whether a member found by his colleagues * * * to have engaged in official misconduct must, because of the accidents of timing, be formally admitted before he can be either investigated or expelled. The sponsor of the motion to exclude stated on the floor that he was proceeding on the theory that the power to expel included the power to exclude, provided a 2/3 vote was forthcoming. It was. Therefore, success for Mr. Powell on the merits would mean that the District Court must admonish the House that it is form, not substance, that should govern in great affairs, and accordingly command the House members to act out a charade.' 129 U.S.App.D.C., at 383—384, 395 F.2d, at 606—607.

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          Although respondents repeatedly urge this Court not to speculate as to the reasons for Powell's exclusion, their attempt to equate exclusion with expulsion would require a similar speculation that the House would have voted to expel Powell had it been faced with that question. Powell had not been seated at the time House Resolution No. 278 was debated and passed. After a motion to bring the Select Committee's proposed resolution to an immediate vote had been defeated, an amendment was offered which mandated Powell's exclusion. ²⁸ Mr. Celler, chairman of the Select Committee, then posed a parliamentary inquiry to determine whether a two-thirds vote was necessary to pass the resolution if so amended 'in the sense that it might amount to an expulsion.' 113 Cong.Rec. 5020. The Speaker replied that 'action by a majority vote would be in accordance with the rules.' Ibid. Had the amendment been regarded as an attempt to expel Powell, a two-thirds vote would have been constitutionally required. The Speaker ruled that the House was voting to exclude Powell, and we will not speculate what the result might have been if Powell had been seated and expulsion proceedings subsequently instituted.

          Nor is the distinction between exclusion and expulsion merely one of form. The misconduct for which Powell was charged occurred prior to the convening of the 90th Congress. On several occasions the House has debated whether a member can be expelled for actions taken during a prior Congress and the House's own manual of procedure applicable in the 90th Congress states that 'both Houses have distrusted their power to punish in such cases.' Rules of the House of Representatives, H.R.Doc. No. 529, 89th Cong., 2d Sess., 25 (1967);

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see G. Galloway, History of the House of Representatives 32 (1961). The House rules manual reflects positions taken by prior Congresses. For example, the report of the Select Committee appointed to consider the expulsion of John W. Langley states unequivocally that the House will not expel a member for misconduct committed during an earlier Congress:

          '(I)t must be said that with practical uniformity the precedents in such cases are to the effect that the House will not expel a Member for reprehensible action prior to his election as a Member, not even for conviction for an offense. On May 23, 1884, Speaker Carlisle decided that the House had no right to punish a Member for any offense alleged to have been committed previous to the time when he was elected a Member, and added, 'That has been so frequently decided in the House that it is no longer a matter of dispute." H.R.Rep. No. 30, 69th Cong., 1st Sess., 1—2 (1925).²⁹

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          Members of the House having expressed a belief that such strictures apply to its own power to expel, we will not assume that two-thirds of its members would have expelled Powell for his prior conduct had the Speaker announced that House Resolution No. 278 was for expulsion rather than exclusion.³⁰

          Finally, the proceedings which culminated in Powell's exclusion cast considerable doubt upon respondents' assumption that the two-thirds vote necessary to expel would have been mustered. These proceedings have been succinctly described by Congressman Eckhardt:

          'The House voted 202 votes for the previous question³¹ leading toward the adoption of the (Select) Committee report. It voted 222 votes against the previous question, opening the floor for the Curtis Amendment which ultimately excluded Powell.

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                    'Upon adoption of the Curtis Amendment, the vote again fell short of two-thirds, being 248 yeas to 176 nays. Only on the final vote, adopting the Resolution as amended, was more than a two-thirds vote obtained, the vote being 307 yeas to 116 nays. On this last vote, as a practical matter, members who would not have denied Powell a seat if they were given the choice to punish him had to cast an aye vote or else record themselves as opposed to the only punishment that was likely to come before the House. Had the matter come up through the processes of expulsion, it appears that the two-thirds vote woud have failed, and then members would have been able to apply a lesser penalty.' ³²

          We need express no opinion as to the accuracy of Congressman Eckhardt's prediction that expulsion proceedings would have produced a different result. However, the House's own views of the extent of its power to expel

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combined with the Congressman's analysis counsel that exclusion and expulsion are not fungible proceedings. The Speaker ruled that House Resolution No. 278 contemplated an exclusion proceeding. We must reject respondents' suggestion that we overrule the Speaker and hold that, although the House manifested an intent to exclude Powell, its action should be tested by whatever standards may govern an expulsion.

          As we pointed out in Baker v. Carr, 369 U.S. 186, 198, 82 S.Ct. 691, 699, 7 L.Ed.2d 663 (1962), there is a significant difference between determining whether a federal court has 'jurisdiction of the subject matter' and determining whether a cause over which a court has subject matter jurisdiction is 'justiciable.' The District Court determined that 'to decide this case on the merits * * * would constitute a clear violation of the doctrine of separation of powers' and then dismissed the complaint 'for want of jurisdiction of the subject matter.' Powell v. McCormack, 266 F.Supp. 354, 359, 360 (D.C.D.C.1967). However, as the Court of Appeals correctly recognized, the doctrine of separation of powers is more properly considered in determining whether the case is 'justiciable.' We agree with the unanimous conclusion of the Court of Appeals that the District Court had jurisdiction over the subject matter of this case.³³ However, for reasons set forth in Part VI, infra, we disagree with the Court of Appeals' conclusion that this case is not justiciable.

          In Baker v. Carr, supra, we noted that a federal district court lacks jurisdiction over the subject matter (1) if the

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cause does not 'arise under' the Federal Constitution, laws, or treaties (or fall within one of the other enumerated categories of Art. III); or (2) if it is not a 'case or controversy' within the meaning of that phrase in Art. III; or (3) if the cause is not one described by any jurisdictional statute. And, as in Baker v. Carr, supra, our determination (see Part VI, B(1) infra) that this cause presents no non-justiciable 'political question' disposes of respondents' contentions³⁴ that this cause is not a 'case or controversy.'³⁵

          Respondents first contend that this is not a case 'arising under' the Constitution within the meaning of Art. III. They emphasize that Art. I, § 5, assigns to each House of Congress the power to judge the elections and qualifications of its own members and to punish its members for disorderly behavior. Respondents also note that under Art. I, § 3, the Senate has the 'sole power' to try all impeachments. Respondents argue that these delegations (to 'judge,' to 'punish,' and to 'try') to the Legislative Branch are explicit grants of 'judicial power' to the Congress and constitute specific exceptions

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to the general mandate of Art. III that the 'judicial power' shall be vested in the federal courts. Thus, respondents maintain, the 'power conferred on the courts by article III does not authorize this Court to do anything more than declare its lack of jurisdiction to proceed.'³⁶

          We reject this contention. Article III, § 1, provides that the 'judicial Power * * * shall be vested in one supreme Court, and in such inferior Courts as the Congress may * * * establish.' Further, § 2 mandates that the 'judicial Power shall extend to all Cases * * * arising under this Constitution * * *.' It has long been held that a suit 'arises under' the Constitution if a petitioner's claim 'will be sustained if the Constitution * * * (is) given one construction and will be defeated if (it is) given another.'³⁷ Bell v. Hood, 327 U.S. 678, 685, 66 S.Ct. 773, 777, 90 L.Ed. 939 (1946). See King County v. Seattle School District No. 1, 263 U.S. 361, 363—364, 44 S.Ct. 127, 127—128, 68 L.Ed. 339 (1923). Cf. Osborn v. Bank of the United States, 9 Wheat. 738, 6 L.Ed. 204 (1824). See generally C. Wright, Federal Courts 48—52 (1963). Thus, this case clearly is one 'arising under' the Constitution as the Court has interpreted that phrase. Any bar to federal courts reviewing the judgments made by the House or Senate in excluding a member arises from the allocation of powers between the two branches of the Federal Government (a question of justiciability), and not from the petitioners' failure to state a claim based on federal law.

          Respondents next contend that the Court of Appeals erred in ruling that petitioners' suit is authorized by a jurisdictional statute, i.e., 28 U.S.C. § 1331(a)

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Section 1331(a) provides that district courts shall have jurisdiction in 'all civil actions wherein the matter in controversy * * * arises under the Constitution * * *.' Respondents urge that even though a case may 'arise under the Constitution' for purposes of Art. III, it does not necessarily 'arise under the Constitution' for purposes of § 1331(a). Although they recognize there is little legislative history concerning the enactment of § 1331(a), e spondents argue that the history of the period when the section was first enacted indicates that the drafters did not intend to include suits questioning the exclusion of Congressmen in this grant of 'federal question' jurisdiction.

          Respondents claim that the passage of the Force Act³⁸ in 1870 lends support to their interpretation of the intended scope of § 1331. The Force Act gives the district courts jurisdiction over 'any civil action to recover possession of any office * * * wherein it appears that the sole question * * * arises out of denial of the right to vote * * * on account of race, color or previous condition of servitude.' However, the Act specifically excludes suits concerning the office of Congressman. Respondents maintain that this exclusion demonstrates Congress' intention to prohibit federal courts from entertaining suits regarding the seating of Congressmen.

          We have noted that the grant of jurisdiction in § 1331(a), while made in the language used in Art. III, is not in all respects co-extensive with the potential for federal jurisdiction found in Art. III. See Zwickler v. Koota, 389 U.S. 241, 246, 88 S.Ct. 391, 394, 19 L.Ed.2d 444, n. 8 (1967). Nevertheless, it has generally been recognized that the intent of the drafters was to provide a broad jurisdictional grant to the federal courts. See, e.g., Mishkin, The Federal 'Question' in the District Courts, 53 Col.L.

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Rev. 157, 160 (1953); Chadbourn & Levin, Original Jurisdiction of Federal Questions, 90 U.Pa.L.Rev. 639, 644—645 (1942). And, as noted above, the resolution of this case depends directly on construction of the Constitution. The Court has consistently held such suits are authorized by the statute. Bell v. Hood, supra; King County v. Seattle School District No. 1, supra. See, e.g., Gully v. First Nat. Bank in Meridian, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936); The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411, 57 L.Ed. 716 (1913).

          As respondents recognize, there is nothing in the wording or legislative history of § 1331 or in the decisions of this Court which would indicate that there is any basis for the interpretation they would give that section. Nor do we think the passage of the Force Act indicates that § 1331 does not confer jurisdiction in this case. The Force Act is limited to election challenges where a denial of the right to vote in violation of the Fifteenth Amendment is alleged. See 28 U.S.C. § 1344. Further, the Act was passed five years before the original version of § 1331 was enacted. While it might be inferred that Congress intended to give each House the exclusive power to decide congressional election challenges,³⁹ there is absolutely no indication that the passage of this Act evidences an intention to impose other restrictions on the broad grant of jurisdiction in § 1331.

          Having concluded that the Court of Appeals correctly ruled that the District Court had jurisdiction over the subject matter, we turn to the question whether the case is justiciable. Two determinations must be made in this regard. First, we must decide whether the claim

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presented and the relief sought are of the type which admit of judicial resolution. Second, we must determine whether the structure of the Federal Government renders the issue presented a 'political question'—that is, a question which is not justiciable in federal court because of the separation of powers provided by the Constitution.

          In deciding generally whether a claim is justiciable, a court must determine whether 'the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded.' Baker v. Carr, supra, at 198, 82 S.Ct. at 700. Respondents do no seriously contend that the duty asserted and its alleged breach cannot be judicially determined. If petitioners are correct, the House had a duty to seat Powell once it determined he met the standing requirements set forth in the Constitution. It is undisputed that he met those requirements and that he was nevertheless excluded.

          Respondents do maintain, however, that this case is not justiciable because, they assert, it is impossible for a federal court to 'mold effective relief for resolving this case.' Respondents emphasize that petitioners asked for coercive relief against the officers of the House, and, they contend, federal courts cannot issue mandamus or injunctions compelling officers or employees of the House to perform specific official acts. Respondents rely primarily on the Speech or Debate Clause to support this contention.

          We need express no opinion about the appropriateness of coercive relief in this case, for petitioners sought a declaratory judgment, a form of relief the District Court could have issued. The Declaratory Judgment Act, 28 U.S.C. § 2201, provides that a district court may 'declare the rights * * * of any interested party * * * whether or not further relief is or could be sought.' The

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availability of declaratory relief depends on whether there is a live dispute between the parties, Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969), and a request for declaratory relief may be considered independently of whether other forms of relief are appropriate. See United Public Workers of America v. Mitchell, 330 U.S. 75, 93, 67 S.Ct. 556, 566, 91 L.Ed. 754 (1947); 6A J. Moore, Federal Practice 57.08(3) (2d ed. 1966); cf. United States v. California, 332 U.S. 19, 25—26, 67 S.Ct. 1658, 1661—1662, 91 L.Ed. 1889 (1947). We thus conclude that in terms of the general criteria of justiciability, this case is justiciable.

          1. Textually Demonstrable Constitutional Commitment.

          Respondents maintain that even if this case is otherwise justiciable, it presents only a political question. It is well established that the federal courts will not adjudicate political questions. See, e.g., Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939); Oetjen v. Central Leather Co., 246 U.S. 297, 38 S.Ct. 309, 62 L.Ed. 726 (1918). In Baker v. Carr, supra, we noted that political questions are not justiciable primarily because of the separation of powers within the Federal Government. After reviewing our decisions in this area, we concluded that on the surface of any case held to involve a political question was at least one of the following formulations:

          'a textually demonstrable constitutional commitment of the issue to a co-ordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due co-ordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality

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          of embarrassment from multifarious pronouncements by various departments on one question.' 369 U.S., at 217, 82 S.Ct., at 710.

          Respondents' first contention is that this case presents a political question because under Art. I, § 5, there has been a 'textually demonstrable constitutional commitment' to the House of the 'adjudicatory power' to determine Powell's qualifications. Thus it is argued that the House, and the House alone, has power to determine who is qualified to be a member.⁴⁰

          In order to determine whether there has been a textual commitment to a coordinate department of the Government, we must interpret the Constitution. In other words, we must first determine what power the Constitution confers upon the House through Art. I, § 5, before we can determine to what extent, if any, the exercise of that power is subject to judicial review. Re-

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spondents maintain that the House has broad power under § 5, and, they argue, the House may determine which are the qualifications necessary for membership. On the other hand, petitioners allege that the Constitution provides that an elected representative may be denied his seat only if the House finds he does not meet one of the standing qualifications expressly prescribed by the Constitution.

          If examination of § 5 disclosed that the Constitution gives the House judicially unreviewable power to set qualifications for membership and to judge whether prospective members meet those qualifications, further review of the House determination might well be barred by the political question doctrine. On the other hand, if the Constitution gives the House power to judge only whether elected members possess the three standing qualifications set forth in the Constitution,⁴¹ further consideration would be necessary to determine whether any of the other formulations of the political question doctrine are

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'inextricable from the case at bar.'⁴² Baker v. Carr, supra, at 217, 82 S.Ct. at 710.

          In other words, whether there is a 'textually demonstrable constitutional commitment of the issue to a coordinate political department' of government and what is the scope of such commitment are questions we must resolve for the first time in this case.⁴³ For, as we pointed out in Baker v. Carr, supra, '(d)eciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.' Id., at 211, 82 S.Ct. at 706.

          In order to determine the scope of any 'textual commitment' under Art. I, § 5, we necessarily must determine the meaning of the phrase to 'be the Judge of the Qualifications of its own Members.' Petitioners argue that the records of the debates during the Constitutional Convention; available commentary from the post-Convention, pre-ratification period; and early congressional applications of Art. I, § 5, support their construction of the section. Respondents insist, however, that a careful examination of the pre-Convention practices of the English Parliament and American colonial assemblies demonstrates that by 1787, a legislature's power to judge the qualifications of its members was generally under-

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stood to encompass exclusion or expulsion on the ground that an individual's character or past conduct rendered him unfit to serve. When the Constitution and the debates over its adoption are thus viewed in historical perspective, argue respondents, it becomes clear that the 'qualifications' expressly set forth in the Constitution were not meant to limit the long-recognized legislative power to exclude or expel at will, but merely to establish 'standing incapacities,' which could be altered only by a constitutional amendment. Our examination of the relevant historical materials leads us to the conclusion that petitioners are correct and that the Constitution leaves the House⁴⁴ without authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution.

                            a. The Pre-Convention Precedents.

          Since our rejection of respondents' interpretation of § 5 results in significant measure from a disagreement with their historical analysis, we must consider the relevant historical antecedents in considerable detail. As do respondents, we begin with the English and colonial precedents.

          The earliest English exclusion precedent appears to be a declaration by the House of Commons in 1553 'that Alex. Nowell, being Prebendary (i.e., a clergyman) in Westminster, and thereby having voice in the Convocation House, cannot be a member of this House * * *.' J. Tanner, Tudor Constitutional Documents: A.D. 1485 1603, p. 596 (2d ed. 1930). This decision, however, was

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consistent with a long-established tradition that clergy who participated in their own representative assemblies or convocations were ineligible for membership in the House of Commons.⁴⁵ See 1 E. Porritt, The Unreformed House of Commons 125 (1963); T. Taswell-Langmead's English Constitutional History 142 143 (11th ed. T. Plucknett 1960). The traditional ineligibility of clergymen was recognized as a standing incapacity.⁴⁶ See 1 W. Blackstone's Commentaries *175. Nowell's exclusion, therefore, is irrelevant to the present case, for petitioners concede—and we agree—that if Powell had not met one of the standing qualifications set forth in the Constitution, he could have been excluded under Art. I, § 5. The earliest colonial exclusions also fail to support respondents' theory.⁴⁷

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          Respondents' remaining 16th and 17th century English precedents all are cases of expulsion, although some were for misdeeds not encompassed within recognized standing incapacities existing either at the time of the expulsions or at the time the Constitution was drafted in 1787.⁴⁸ Although these early expulsion orders occasionally contained statements suggesting that the individual expelled was thereafter ineligible for re-election, at least for the duration of the Parliament from which he was expelled,⁴⁹

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there is no indication that any were re-elected and thereafter excluded. Respondents' colonial precedents during this period follow a similar pattern.⁵⁰

          Apparently the re-election of an expelled member first occurred in 1712. The House of Commons had expelled Robert Walpole for receiving kickbacks for contracts relating to 'foraging the Troops,' 17 H.C.Jur. 28, and committed him to the Tower. Nevertheless, two months later he was re-elected. The House thereupon resolved '(t)hat Robert Walpole, Esquire, having been, this Session of Parliament, committed a Prisoner to the Tower of London, and expelled (from) this House, * * * is, incapable of being elected a Member to serve in this present Parliament * * *.' Id., at 128. (Second emphasis added.) A new election was ordered, and Walpole was not re-elected. At least two similar exclusions after an initial expulsion were effected in the American colonies during the first half of the 18th century.⁵¹

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          Respondents urge that the Walpole case provides strong support for their conclusion that the pre-Convention English and colonial practice was that members-elect could be excluded for their prior misdeeds at the sole discretion of the legislative body to which they had been elected. However, this conclusion overlooks an important limiting characteristic of the Walpole case and of both the colonial exclusion cases on which respondents rely: the excluded member had been previously expelled. Moreover, Walpole was excluded only for the remainder of the Parliament from which he had been expelled. 'The theory seems to have been that expulsion lasted as long as the parliament * * *.' Taswell-Langmead, supra, at 584, n. 99. Accord, 1 W. Blackstone's Commentaries *176. Thus, Walpole's exclusion justifies only the proposition that an expulsion lasted for the remainder of the particular Parliament, and the expelled member was therefore subject to subsequent exclusion if reelected prior to the next general election. The two colonial cases arguably support a somewhat broader principle, i.. , that the assembly could permanently expel. Apparently the colonies did not consistently adhere to the theory that an expulsion lasted only until the election of a new assembly. M. Clarke, Parliamentary Privilege in the American Colonies 196—202 (1943).⁵² Clearly, however, none of these cases supports respondents' contention that by the 18th century the English Parliament

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and colonial assemblies had assumed absolute discretion to exclude any member-elect they deemed unfit to serve. Rather, they seem to demonstrate that a member could be excluded only if he had first been expelled.

          Even if these cases could be construed to support respondents' contention, their precedential value was nullified prior to the Constitutional Convention. By 1782, after a long struggle, the arbitrary exercise of the power to exclude was unequivocally repudiated by a House of Commons resolution which ended the most notorious English election dispute of the 18th century—the John Wilkes case. While serving as a member of Parliament in 1763, Wilkes published an attack on a recent peace treaty with France, calling it a product of bribery and condemning the Crown's ministers as "the tools of despotism and corruption." R. Postgate, That Devil Wilkes 53 (1929). Wilkes and others who were involved with the publication in which the attack appeared were arrested. ⁵³ Prior to Wilkes' trial, the House of Commons expelled him for publishing 'a false, scandalous, and seditious libel.' 15 Parl.Hist.Eng. 1393 (1764). Wilkes then fled to France and was subsequently sentenced to exile. 9 L. Gipson, The British Empire Before the American Revolution 37 (1956).

          Wilkes returned to England in 1768, the same year in which the Parliament from which he had been expelled was dissolved. He was elected to the next Parliament, and he then surrendered himself to the Court of King's Bench. Wilkes was convicted of seditious libel and sentenced to 22 months' imprisonment. The new Parlia-

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ment declared him ineligible for membership and ordered that he be 'expelled this House.' 16 Parl.Hist.Eng. 545 (1769). Although Wilkes was re-elected to fill the vacant seat three times, each time the same Parliament declared him ineligible and refused to seat him. See 1 Gipson, supra, at 207—215.⁵⁴

          Wilkes was released from prison in 1770 and was again elected to Parliament in 1774. For the next several years, he unsuccessfully campaigned to have the resolutions expelling him and declaring him incapable of re-election expunged from the record. Finally, in 1782, the House of Commons voted to expunge them, resolving that the prior House actions were 'subversive of the rights of the whole body of electors of this kingdom.' 22 Parl.Hist.Eng. 1411 (1782).

          With the successful resolution of Wilkes' long and bitter struggle for the right of the British electorate to be represented by men of their own choice, it is evident that, on the eve of the Constitutional Convention, English precedent stood for the proposition that 'the law of the land had regulated the qualifications of members to serve in parliament' and those qualification were 'not occasional but fixed.' 16 Parl.Hist.Eng. 589, 590 (1769). Certainly English practice did not support, nor had it ever supported, respondents' assertion that the power to judge qualifications was generally understood to encompass the right to exclude members-elect for general misconduct not within standing qualifications. With the repudiation in 1782 of the only two precedents

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for excluding a member-elect who had been previously expelled,⁵⁵ it appears that the House of Commons also repudiated any 'control over the eligibility of candidates, except in the administration of the laws which define their (standing) qualifications.' T. May's Parliamentary Practice 66 (13th ed. T. Webster 1924). See Taswell-Langmead, supra, at 585.⁵⁶

          The resolution of the Wilkes case similarly undermined the precedential value of the earlier colonial exclusions, for the principles upon which they had been based were repudiated by the very body the colonial assemblies sought to imitate and whose precedents they generally followed. See Clarke, supra, at 54, 59 60, 196. Thus, in 1784 the Council of Censors of the Pennsylvania Assembly⁵⁷ denounced the prior expulsion of an unnamed assemblyman, ruling that his expulsion had not been effected in conformity with the recently enacted Pennsylvania Constitution.⁵⁸ In the course of its report, the

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Council denounced by name the Parliamentary exclusions of both Walpole and Wilkes, stating that they 'reflected dishonor on none but the authors of these violences.' Pennsylvania Convention Proceedings: 1776 and 1790, p. 89 (1825).

          Wilkes' struggle and his ultimate victory had a significant impact in the American colonies. His advocacy of libertarian causes⁵⁹ and his pursuit of the right to be

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seated in Parliament became a cause celebre for the colonists. '(T)he cry of 'Wilkes and Liberty' echoed loudly across the Atlantic Ocean as wide publicity was given to every step of Wolkes's public career in the colonial press * * *. The reaction in America took on significant proportions. Colonials tended to identify their cause with that of Wilkes. They saw him as a popular hero and a martyr to the struggle for liberty. * * * They named towns, counties, and even children in his honour.' 11 Gipson, supra, at 222.⁶⁰ It is within this historical context that we must examine the Convention debates in 1787, just five years after Wilkes' final victory.

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          Relying heavily on Charles Warren's analysis⁶¹ of the Convention debates, petitioners argue that the proceedings manifest the Framers' unequivocal intention to deny either branch of Congress the authority to add to or otherwise vary the membership qualifications expressly set forth in the Constitution. We do not completely agree, for the debates are subject to other interpretations. However, we have concluded that the records of the debates, viewed in the context of the bitter struggle for the right to freely choose representatives which had recently concluded in England and in light of the distinction the Framers made between the power to expel and the power to exclude, indicate that petitioners' ultimate conclusion is correct.

          The Convention opened in late May 1787. By the end of July, the delegates adopted, with a minimum of debate, age requirements for membership in both the Senate and the House. The Convention then apo inted a Committee of Detail to draft a constitution incorporating these and other resolutions adopted during the preceding months. Two days after the Committee was appointed, George Mason, of Virginia, moved that the Committee consider a clause "requiring certain qualifications of landed property & citizenship" and disqualifying from membership in Congress persons who had unsettled accounts or who were indebted to the United States. 2 Farrand 121. A vigorous debate ensued. Charles Pinckney and General Charles C. Pinckney, both of South Carolina, moved to extend these incapacities to both the judicial and executive branches of the new government. But John Dickinson, of Delaware, opposed the inclusion of any statement of qualifications in the Constitution. He argued that it would be 'im-

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possible to make a compleat one, and a partial one would by implication tie up the hands of the Legislature from supplying the omissions.' Id., at 123. ⁶² Dickinson's argument was rejected; and, after eliminating the disqualification of debtors and the limitation to 'landed' property, the Convention adopted Mason's proposal to instruct the Committee of Detail to draft a property qualification. Id., at 116—117.

          The Committee reported in early August, proposing no change in the age requirement; however, it did recommend adding citizenship and residency requirements for membership. After first debating what the precise requirements should be, on August 8, 1787, the delegates unanimously adopted the three qualifications embodied in Art. I, § 2. Id., at 213.⁶³

          On August 10, the Convention considered the Committee of Detail's proposal that 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.' Id., at 179. The debate on this proposal discloses much about the views of the Framers on the issue of qualifications. For example, James Madison urged its rejection, stating that the proposal would vest

          'an improper & dangerous power in the Legislature. The qualifications of electors and elected were fundamental articles in a Republican Govt. and ought to be fixed by the Constitution. If the Legislature

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          could regulate those of either, it can by degrees subvert the Constitution. A Republic may be converted into an aristocracy or oligarchy as well by limiting the number capable of being elected, as the number authorised to elect. * * * It was a power also, which might be made subservient to the views of one faction agst. another. Qualifications founded on artificial distinctions may be devised, by the stronger in order to keep out partizans of (a weaker) faction.' Id., at 249—250.⁶⁴

          Significantly, Madison's argument was not aimed at the impost ion of a property qualification as such, but rather at the delegation to the Congress of the discretionary power to establish any qualifications. The parallel between Madison's arguments and those made in Wilkes' behalf is striking.⁶⁵

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          In view of what followed Madison's speech, it appears that on this critical day the Framers were facing and then rejecting the possibility that the legislature would have power to usurp the 'indisputable right (of the people) to return whom they thought proper'⁶⁶ to the legislature. Oliver Ellsworth, of Connecticut, noted that a legislative power to establish property qualifications was exceptional and 'dangerous because it would be much more liable to abuse.' Id., at 250. Gouverneur Morris then moved to strike 'with regard to property' from the Committee's proposal. His intention was 'to leave the Legislature entirely at large.' Ibid. Hugh Williamson, of North Carolina, expressed concern that if a majority of the legislature should happen to be 'composed of any particular description of men, of lawyers for example, * * * the future elections might be secured to their own body.' Ibid.⁶⁷ Madison then referred to the British Parliament's assumption of the power to regulate the qualifications of both electors and the elected and noted that 'the abuse they had made of it was a lesson worthy of our attention. They had made the changes in both cases subservient to their own views, or to the views of political or Religious parties.' Ibid.⁶⁸ Shortly thereafter,

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the Convention rejected both Gouverneur Morris' motion and the Committee's proposal. Later the same day, the Convention adopted without debate the provision authorizing each House to be 'the judge of the * * * qualifications of its own members.' Id., at 254.

          One other decision made the same day is very important to determining the meaning of Art. I, § 5. When the delegates reached the Committee of Detail's proposal to empower each House to expel its members, Madison 'observed that the right of expulsion * * * was too important to be exercised by a bare majority of a quorum: and in emergencies (one) faction might be dangerously abused.' Id., at 254. He therefore moved that 'with the concurrence of two-thirds' be inserted. With the exception of one State, whose delegation was divided, the motion was unanimously approve without debate, although Gouverneur Morris noted his opposition. The importance of this decision cannot be over-emphasized. None of the parties to this suit disputes that prior to 1787 the legislative powers to judge qualifications and to expel were exercised by a majority vote. Indeed, without exception, the English and colonial antecedents to Art. I, § 5, cls. 1 and 2, support this conclusion. Thus, the Convention's decision to increase the vote required to expel, because that power was 'too important to be exercised by a bare majority,' while at the same time not similarly restricting the power to judge qualifications, is compelling evidence that they considered the latter already limited by the standing qualifications previously adopted.⁶⁹

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          Respondents urge, however, that these events must be considered in light of what they regard as a very significant change made in Art. I, § 2, cl. 2, by the Committee of Style. When the Committee of Detail reported the provision to the Convention, it read:

          'Every member of the House of Representatives shall be of the age of twenty five years at least; shall have been a citizen of (in) the United States for at least three years before his election; and shall be, at the time of his election, a resident of the State in which he shall be chosen.' Id., at 178.

          However, as finally drafted by the Committee of Style, these qualifications were stated in their present negative form. Respondents note that there are no records of the 'deliberations' of the Committee of Style. Nevertheless, they speculate that this particular change was designed to make the provision correspond to the form used by Blackstone in listing the 'standing incapacities' for membership in the House of Commons. See 1 W. Blackstone's Commentaries **175—176. Blackstone, who was an apologist for the anti-Wilkes forces in Parlia-

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ment,⁷⁰ had added to his Commentaries after Wilkes' exclusion the assertion that individuals who were not ineligible for the Commons W. Blackstone's Commentaries *175—176. be denied their seat if the Commons deemed them unfit for other reasons.⁷¹ Since Blackstone's Commentaries was widely circulated in the Colonies, respondents further speculate that the Committee of Style rephrased the qualifications provision in the negative to clarify the delegates' intention 'only to prescribe the standing incapacities without imposing any other limit on the historic power of each house to judge qualifications on a case by case basis.'⁷²

          Respondents' argument is inherently weak, however, because it assumes that legislative bodies historically possessed the power to judge qualifications on a case-by-case basis. As noted above, the basis for that conclusion was the Walpole and Wilkes cases, which, by the time of the Convention, had been denounced by the House of Commons and repudiated by at least one State government. Moreover, respondents' argument misrepresents the function of the Committee of Style. It was appointed only 'to revise the stile of and arrange the articles which had been agreed to * * *.' 2 Farrand 553.

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'(T)he Committee * * * had no authority from the Convention to make alterations of substance in the Constitution as voted by the Convention, nor did it purport to do so; and certainly the Convention had no belief * * * that any important change was, in fact, made in the provisions as to qualifications adopted by it on August 10.' ⁷³

          Petitioners also argue that the post-Convention debates over the Constitution's ratification support their interpretation of § 5. For example, they emphasize Hamilton's reply to the antifed-eralist charge that the new Constitution favored the wealthy and well-born:

          'The truth is that there is no method of securing to the rich the preference apprehended but by prescribing qualifications of property either for those who may elect or be elected. But this forms on part of the power to be conferred upon the national government. Its authority would be expressly restricted to the regulation of the times, the places, the manner of elections. The qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature.'

          The Federalist Papers 371 (Mentor ed. 1961). (Emphasis in last sentence added.)

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          Madison had expressed similar views in an earlier essay,⁷⁴ and his arguments at the Convention leave no doubt about his agreement with Hamilton on this issue.

          Respondents counter that Hamilton was actually addressing himself to criticism of Art. I, § 4, which authorizes Congress to regulate the times, pa ces, and manner of electing members of Congress. They note that prominent antifederalists had argued that this power could be used to 'confer on the rich and well-born, all honours.' Brutus No. IV, N.Y. Journal, Nov. 29, 1787, p. 7. (Emphasis in original.) Respondents' contention, however, ignores Hamilton's express reliance on the immutability of the qualifications set forth in the Constitution.⁷⁵

          The debates at the state conventions also demonstrate the Framers' understanding that the qualifications for members of Congress had been fixed in the Constitution. Before the New York convention, for example, Hamilton emphasized: '(T)he true principle of a republic is, that

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the people should choose whom they please to govern them. Representation is imperfect in proportion as the current of popular favor is checked. This great source of free government, popular election, should be perfectly pure, and the most unbounded liberty allowed.' 2 Debates on the Federal Constitution 257 (J. Elliot ed. 1876) (hereinafter cited as Elliot's Debates).⁷⁶ In Virginia, where the Federalists faced powerful opposition by advocates of popular democracy, Wilson Carey Nicholas, a future member of both the House and Senate and later Governor of the State, met the arguments that the new Constitution violated democratic principles with the following interpretation of Art. I, § 2, cl. 2, as it respects the qualifications of the elected: 'It has ever been considered a great security to liberty, that very few should be excluded from the right of being chosen to the legislature. This Constitution has amply attended to this idea. We find no qualifications required except those of age and residence, which create a certainty of their judgment being matured, and of being attached to their state.' 3 Elliot's Debates 8.

          As clear as these statements appear, respondents dismiss them as 'general statements * * * directed to other issues.'⁷⁷ They suggest that far more relevant is Congress' own understanding of its power to judge qualifications as manifested in post-ratification exclusion cases. Unquestionably, both the House and the Senate have excluded memberselect for reasons other than their

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failure to meet the Constitution's standing qualifications. For almost the first 100 years of its existence, however, Congress strictly limited its power to judge the qualifications of its members to those enumerated in the Constitution.

          Congress was first confronted with the issue in 1807,⁷⁸ when the eligibility of William McCreery was challenged because he did not meet additional residency requirements imposed by the State of Maryland. In recommending that he be seated, the House Committee of Elections reasoned:

          'The committee proceeded to examine the Constitution, with relation to the case submitted to them, and find that qualifications of members are therein determined, without reserving any authority to the State Legislatures to change, add to, or diminish those qualifications; and that, by that instrument, Congress is constituted the sole judge of the qualifications prescribed by it, and are obliged to decide agreeably to the Constitutional rules * * *.' 17 annals of Cong. 871 (1807).

          Lest there be any misunderstanding of the basis for the committee's recommendation, during the ensuing debate the chairman explained the principles by which the committee was governed:

          'The Committee of Elections considered the qualifications of members to have been unalterably de-

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          termined by the Federal Convention, unless changed by an authority equal to that which framed the Constitution at first; that neither the State nor the Federal Legislatures are vested with authority to add to those qualifications, so as to change them. * * * Congress, by the Federal Constitution, are not authorized to prescribe the qualifications of their own members, but they are authorized to judge of their qualifications; in doing so, however, they must be governed by the rules prescribed by the Federal Constitution, and by them only. These are the principles on which the Election Committee have made up their report, and upon which their resolution is founded.' Id., at 872.

          The chairman emphasized that the committee's narrow construction of the power of the House to judge qualifications was compelled by the 'fundamental principle in a free government,' id., at 873, that restrictions upon the people to choose their own representatives must be limited to those 'absolutely necessary for the safety of the society.' Id., at 874. At the conclusion of a lengthy debate, which tended to center on the more narrow issue of the power of the States to add to the standing qualifications set forth in the Constitution, the House agreed by a vote of 89 to 18 to seat Congressman McCreery. Id., at 1237. See 1 A. Hinds, Precedents of the House of Representatives of the United States § 414 (1907) (hereinafter cited as Hinds).

          There was no significant challenge to these principles for the next several decades.⁷⁹ They came under heavy

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attack, however, 'during the stress of civil war (but initially) the House of Representatives declined to exercise the power (to exclude), even under circumstances of great provocation.'⁸⁰ Rules of the House of Representatives, H.R.Doc. No. 529, 89th Cong., 2d Sess., § 12, p. 7 (1967). The abandonment of such restraint, however, was among the casualties of the general upheaval produced in war's wake. In 1868, the House voted for the first time in its history to exclude a member-elect. It refused to seat two duly elected representatives for giving aid and comfort to the Confederacy. See 1 Hinds §§ 449—451.⁸¹ 'This change was produced by the North's bitter enmity toward those who failed to support the Union cause during the war, and was effected by the Radical Republican domination of Congress. It was a shift brought about by the naked urgency of power and was given little doctrinal support.' Comment, Legislative Exclusion: Julian Bond and Adam Clayton Powell, 35 U.Chi.L.Rev. 151, 157 (1967).⁸² From that time until

Page 545

the present, congressional practice has been erratic;⁸³ and on the few occasions when a member-elect was excluded although he met all the qualifications set forth in the

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Constitution, there were frequently vigorous dissent. ⁸⁴ Even the annotations to the official manual of procedure for the 90th Congress manifest doubt as to the House's power to exclude a member-elect who has met the constitutionally prescribed qualifications. See Rules of the House of Representatives, H.R.Doc. No. 529, 89th Cong., 2d Sess., § 12, pp. 7—8 (1967).

          Had these congressional exclusion precedents been more consistent, their precedential value still would be quite limited. See Note, The Power of a House of Congress to Judge the Qualifications of its Members, 81 Harv.L.Rev. 673, 679 (1968).⁸⁵ That an unconstitu-

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tional action has been taken before surely does not render that same action any less unconstitutional at a later date. Particularly in view of the Congress' own doubts in those few cases where it did exclude members-elect, we are not inclined to give its precedents controlling weight. The relevancy of prior exclusion cases is limited largely to the insight they afford in correctly ascertaining the draftsmen's intent. Obviously, therefore, the precedential value of these cases tends to increase in proportion to their proximity to the Convention in 1787. See Myers v. United States, 272 U.S. 52, 175, 47 S.Ct. 21, 45, 71 L.Ed. 160 (1926). And, what evidence we have of Congress' early understanding confirms our conclusion that the House is without power to exclude any member-elect who meets the Constitution's requirements for membership.

          Had the intent of the Framers emerged from these materials with less clarity, we would nevertheless have been compelled to resolve any ambiguity in favor of a narrow constuction of the scope of Congress' power to exclude members-elect. A fundamental principle of our representative democracy is, in Hamilton's words, 'that the people should choose whom they please to govern them.' 2 Elliot's Debates 257. As Madison pointed out at the Convention, this principle is undermined as much by limiting whom the people can select as by limiting the franchise itself. In apparent agreement with this basic philosophy, the Convention adopted his suggestion limiting the power to expel. To allow essentially that same power to be exercised under the guise of judging qualifications, would be to ignore Madison's warning, borne out in the Wilkes case and some of Con-

Page 548

gress' own post-Civil War exclusion cases, against 'vesting an improper & dangerous power in the Legislature.' 2 Farrand 249. Moreover, it would effectively nullify the Convention's decision to require a two-thirds vote for expulsion. Unquestionably, Congress has an interest in preserving its institutional integrity, but in most cases that interest can be sufficiently safeguarded by the exercise of its power to punish its members for disorderly behavior and, in extreme cases, to expel a member with the concurrence of two-thirds. In short, both the intention of the Framers, to the extent it can be determined, and an examination of the basic principles of our democratic system persuade us that the Constitution does not vest in the Congress a discretionary power to deny membership by a majority vote.

          For these reasons, we have concluded that Art. I, § 5, is at most a 'textually demonstrable commitment' to Congress to judge only the qualifications expressly set forth in the Constitution. Therefore, the 'textual commitment' formulation of the political question doctrine does not bar federal courts from adjudicating petitioners' claims.

          Respondents' alternate contention is that the case presents a political question because judicial resolution of petitioners' claim would produce a 'potentially embarrassing confrontation between coordinate branches' of the Federal Government. But, as our interpretation of Art. I, § 5, discloses, a determination of petitioner Powell's right to sit would require no more than an interpretation of the Constitution. Such a determination falls within the traditional role accorded courts to interpret the law, and does not involve a 'lack of the respect due (a) coordinate (branch) of government,' nor does it involve an 'initial policy determination of a kind clearly for non-

Page 549

judicial discretion.' Baker v. Carr, 369 U.S. 186, at 217, 82 S.Ct. 691, at 710. Our system of government requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch. The alleged conflict that such an adjudication may cause cannot justify the courts' avoiding their constitutional responsibility.⁸⁶ See United States v. Brown, 381 U.S. 437, 462, 85 S.Ct. 1707, 1722, 14 L.Ed.2d 484 (1965); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 613—614, 72 S.Ct. 863, 898, 96 L.Ed. 1153 (1952) (Frankfurter, J., concurring); Myers v. United States, 272 U.S. 52, 293, 47 S.Ct. 21, 84 (1926) (Brandeis, J., dissenting).

          Nor are any of the other formulations of a political question 'inextricable from the case at bar.' Baker v. Carr, supra, at 217, 82 S.Ct. at 710. Petitioners seek a determination that the House was without power to exclude Powell from the 90th Congress, which, we have seen, requires an interpretation of the Constitution—a determination for which clearly there are 'judicially * * * manageable standards.' Finally, a judicial resolution of petitioners' claim will not result in 'multifarious pronouncements by various departments on one question.' For, as we noted in Baker v. Carr, supra, at 211, 82 S.Ct., at 706 it is the responsibility of this Court to act as the ultimate interpreter of the Constitution. Marbury v. Madison, 1 Cranch (5 U.S.) 137, 2 L.Ed. 60 (1803). Thus, we conclude that petitioners' claim is not barred by the political question doctrine, and, having determined that the claim is otherwise generally justiciable, we hold that the case is justiciable.

          To summarize, we have determined the following: (1) This case has not been mooted by Powell's seating in

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the 91st Congress. (2) Although this action should be dismissed against respondent Congressmen, it mayb e sustained against their agents. (3) The 90th Congress' denial of membership to Powell cannot be treated as an expulsion. (4) We have jurisdiction over the subject matter of this controversy. (5) The case is justiciable.

          Further, analysis of the 'textual commitment' under Art. I, § 5 (see Part VI, B (1)), has demonstrated that in judging the qualifications of its members Congress is limited to the standing qualifications prescribed in the Constitution. Respondents concede that Powell met these. Thus, there is no need to remand this case to determine whether he was entitled to be seated in the 90th Congress. Therefore, we hold that, since Adam Clayton Powell, Jr., was duly elected by the voters of the 18th Congressional District of New York and was not ineligible to serve under any provision of the Constitution, the House was without power to exclude him from its membership.

          Petitioners seek additional forms of equitable relief, including mandamus for the release of petitioner Powell's back pay. The propriety of such remedies, however, is more appropriately considered in the first instance by the courts below. Therefore, as to respondents McCormack, Albert, Ford, Celler, and Moore, the judgment of the Court of Appeals for the District of Columbia Circuit is affirmed. As to respondents Jennings, Johnson, and Miller, the judgment of the Court of Appeals for the District of Columbia Circuit is reversed and the case is remanded to the United States District Court for the District of Columbia with instructions to enter a declaratory judgment and for further proceedings consistent with this opinion.

          It is so ordered.

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          Mr. Justice DOUGLAS.

          While I join the opinion of the Court, I add a few words. As the Court says, the important constitutional question is whether the Congress has the power to deviate from or alter the qualifications for membership as a Representative contained in Art. I, § 2, cl. 2, of the Constitution.¹ Up to now the understanding has been quite clear to the effect that such authority does not exist.² To be sure, Art. I, § 5, provides that: 'Each

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House shall be the Judge of the Elections, Returns and Qualifications of its own Members * * *.' Contests may arise over whether an elected official meets the 'qualifications' of the Constitution, in which event the House is the sole judge.³ But the House is not the sole judge when 'qualifications' are added which are not specified in the Constitution.⁴

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          A man is not seated because he is a Socialist or a Communist.⁵

          Another is not seated because in his district members of a minority are systematically excluded from voting.⁶

          Another is not seated because he has spoken out in opposition to the war in Vietnam.⁷

          The possible list is long. Some cases will have the racist overtones of the present one.

          Others may reflect religious or ideological clashes.⁸

          At the root of all these cases, however, is the basic integrity of the electoral process. Today we proclaim the constitutional principle of 'one man, one vote.' When that principle is followed and the electors choose a person who is repulsive to the Establishment in Congress, by what constitutional authority can that group of electors be disenfranchised?

          By Art. I, § 5, the House may 'expel a Member' by a vote of two-thirds. And if this were an expulsion case I would think that no justiciable controversy would be presented, the vote of the House being two-thirds or more. But it is not an expulsion case. Whether it could have been won as an expulsion case, no one knows. Expulsion for 'misconduct' may well raise different questions, different considerations. Policing the conduct of members, a recurring problem in the Senate and House as well, is quite different from the initial decs ion whether an elected official should be seated. It well might be easier to bar admission than to expel one already seated.

          The House excluded Representative-elect Powell from the 90th Congress allegedly for misappropriating public funds and for incurring the contempt of New York

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courts.⁹ Twenty-six years earlier, members of the upper chamber attempted to exclude Senator-elect William Langer of North Dakota for like reasons.¹⁰ Langer first became State's Attorney for Morton County, North Dakota, from 1914 to 1916, and then served as State Attorney General from 1916 to 1920. He became Governor of the State in 1932 and took office in January 1933. In 1934 he was indicted for conspiring to interfere with the enforcement of federal law by illegally soliciting political contributions from federal employees, and suit was filed in the State Supreme Court to remove him from office.¹¹ While that suit was pending, he called the State Legislature into special session.¹² When it became clear that the court would order his ouster, he signed a Declaration of Independence, invoked martial law, and called out the National Guard.¹³ Nonetheless, when his own officers refused to recognize him as the legal head of state, he left office in July 1934. As with Adam Clayton Powell, however, the people of the State still wanted him. In 1937 they re-elected him Governor and, in 1940, they sent him to the United States Senate.

          During the swearing-in ceremonies, Senator Barkley drew attention to certain complaints filed against Langer by citizens of North Dakota, yet asked that he be allowed to take the oath of office

          'without prejudice, which is a two-sided proposition—without prejudice to the Senator and without

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          prejudice to the Senate in the exercise of its right (to exclude him).'¹⁴

          The matter of Langer's qualifications to serve in the Senate was referred to committee which held confidential hearings on January 9 and 16, 1941, and open hearings on November 3 and 18, 1941. By a vote of 14 to 2, the committee reported that a majority of the Senate had jurisdiction under Art. I, § 5, cl. 1, of the Constitution to exclude Langer; and, by a vote of 13 to 3, it reported its recommendation that Langer not be seated.¹⁵

          The charges against Langer were various. As with Powell, they included claims that he had misappropriated public funds¹⁶ and that he had interfered with the judicial process in a way that beclouded the dignity of Congress.¹⁷ Reference was also made to his professional ethics as a lawyer.¹⁸

          Langer enjoyed the powerful advocacy of Senator Murdock from Utah. The Senate debate itself raged

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for over a year.¹⁹ Much of it related to purely factual allegations of 'moral turpitude.' Some of it, however, was addressed to the power of the Senate under Art. I, § 5, cl. 1, to exclude a member-elect for lacking qualifications not enumerated in Art. I, § 3.

          'Mr. MURDOCK. * * * (U)nder the Senator's theory that the Senate has the right to add qualifications which are not specified in the Constitution, does the Senator believe the Senate could adopt a rule specifying intellectual and moral qualifications?²⁰

          'Mr. LUCAS. The Senate can do anything it wants to do * * *. Yes; the Senate can deny a person his seat simply because it does not like the cut of his jaw, if it wishes to.'²¹

          Senator Murdock argued that the only qualifications for service in the Senate were those enumerated in the Constitution; that Congress had the power to review those enumerated qualifications; but that it could not—while purporting to 'judge' those qualifications—in reality add to them.

          'Mr. LUCAS. The Senator referred to article I, section 5. What does he think the framers of the Constitution meant when they gave to each House the power to determine or to judge the qualifications, and so forth, of its own Members? ²²

          'Mr. MURDOCK. I construe the term 'judge' to mean what it is held to mean in its common, ordinary usage. My understanding of the definition of the

Page 557

          word 'judge' as a verb is this: When we judge of a thing it is supposed that the rules are laid out; the law is there for us to look at and to apply to the facts.

          'But whoever heard the word 'judge' used as meaning the power to add to what already is the law?'²³

          It was also suggested from the floor that the enumerated qualifications in § 3 were only a minimum which the Senate could supplement; and that the Founding Fathers so intended by using words of the negative. To which Senator Murdock replied—

          'Mr. President, I think it is the very distinguished and able Senator from Georgia who makes the contention that the constitutional provisions relating to qualifications, because they are stated in the negative—that is, 'no person shall be a Senator'—are merely restrictions or prohibitions on the State; but—and I shall read it later on—when we read what Madison said, when we read what Hamilton said, when we read what the other framers of the Constitution said on that question, there cannot be a doubt as to what they intended and what they meant.²⁴

          'Madison knew that the qualifications should be contained in the Constitution and not left to the whim and caprice of the legislature.²⁵

          'Bear that in mind, that the positive or affirmative phraseology was not changed to the negative by debate or by amendment in the convention, but it

Page 558

          was changed by the committee of which Madison was a member, the committee on style.'²⁶

          The Senate was nonetheless troubled by the suggestion that the Constitution compelled it to accept anyone whom the people might elect, no matter how egregious and even criminal his behavior. No need to worry, said Murdock. It is true that the Senate cannot invoke its majority power to 'judge' under Art. I, § 5, cl. 1, as a device for excluding men elected by the people who possess the qualifications enumerated by the Constitution. But it does have the power under Art. I, § 5, cl. 2, to expel anyone it designates by a two-thirds vote. None-theless, he urged the Senate not to bypass the two-thirds requirement for expulsion b wrongfully invoking its power to exclude.²⁷

          'Mr. LUCAS. * * * The position the Senator from Utah takes is that it does not make any difference what a Senator does in the way of crime, that whenever he is elected by the people of his State, comes here with bona fide credentials, and there is no fraud in the election, the Senate cannot refuse to give him the oath. That is the position the Senator takes?

          'Mr. MURDOCK. That is my position; yes.²⁸

          'My position is that we do not have the right to exclude anyone who comes here clothed with the proper credentials and possessing the constitutional qualifications. My position is that we do not have

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          the right under the provision of the Constitution to which the Senator from Florida referred, to add to the qualifications. My position is that the State is the sole judge of the intellectual and the moral qualifications of the representatives it sends to Congress.'²⁹

          'MR. MURDOCK (quoting Senator Philander Knox). 'I know of no defect in the plain rule of the Constitution for which I am contending. * * * I cannot see that any danger to the Senate lies in the fact that an improper character cannot be excluded without a two-thirds vote. It requires the unanimous vote of a jury to convict a man accused of crime; it should require, and I believe that it does require, a two-thirds vote to eject a Senator from his position of honor and power, to which he has been elected by a sovereign State."³⁰

          Thus, after a year of debate, on March 27, 1942, the Senate overruled the recommendation of its committee and voted 52 to 30 to seat Langer.

          I believe that Senator Murdock stated the correct constitutional principle governing the present case.

           Mr. Justice STEWART, dissenting.

          I believe that events which have taken place since certiorari was granted in this case on November 18, 1968, have rendered it moot, and that the Court should therefore refrain from deciding the novel, difficult, and delicate constitutional questions which the case presented at its inception.

Page 560

          The essential purpose of this lawsuit by Congressman Powell and members of his constituency was to regain the seat from which he was barred by the 90th Congress. That purpose, however, became impossible of attainment on January 3, 1969, when the 90th Congress passed into history and the 91st Congress came into being. On that date, the petitioners' prayer for a judicial decree restraining enforcement of House Resolution No. 278 and commanding the respondents to admit Congressman Powell to membership in the 90th Congress became incontestably moot.

          The petitioners assert that actions of the House of Representatives of the 91st Congress have prolonged the controversy raised by Powell's exclusion and preserved the need for a judicial declaration in this case. I believe, to the contrary, that the conduct of the present House of Representatives confirms the mootness of the petitioners' suit against the 90th Congress. Had Powell been excluded from the 91st Congress, he might argue that there was a 'continuing controversy' concerning the exclusion attacked in this case.¹ And such an argument might be sound even though the present House of Representatives is a distinct legislative body rather than a continuation of its predecessor,² and though any griev

Page 561

ance caused by conduct of the 91st Congress is not redressable in this action. But on January 3, 1969, the House of Representatives of the 91st Congress admitted Congressman Powell to membership, and he now sits as the Representative of the 18th Congressional District of New York. With the 90th Congress terminated and Powell now a member of the 91st, it cannot seriously be contended that there remains a judicial controversy between these parties over the power of the House of Representatives to exclude Powell and the power of a court to order him reseated. Understandably, neither the Court nor the petitioners advance the wholly untenable proposition that the continuation of this case can be founded on the infinitely remote possibility that Congressman Powell, or any other Representative, may someday be excluded for the same reasons or in the same manner. And because no foreseeable possibility of such future conduct exists, the respondents have met their heavy burden of showing that 'subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.' United States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 203, 89 S.Ct. 361, 364.³

          The petitioners further argue that this case cannot be deemed moot because of the principle that 'the voluntary abandonment of a practice does not relieve a court of adjudicating its legality * * *.' Gray v. Sanders, 372

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U.S. 368, 376, 83 S.Ct. 801, 806, 9 L.Ed.2d 821.⁴ I think it manifest, however, that this principle and the cases enunciating it have no application to the present case. In the first place, this case does not involve 'the voluntary abandonment of a practice.' Rather it became moot because of an event over which the respondents had no control—the expiration of the 90th Congress. Moreover, unlike the cases relied on by the petitioners, there has here been no ongoing course of conduct of indefinite duration against which a permanent injunction is necessary. Thus, it cannot be said of the respondents' actions in this case, as it was of the conduct sought to be enjoined in Gray, for example, that 'the practice is deeply rooted and long standing,' ibid., or that, without judicial relief, the respondents would be 'free to return to (their) old ways.' United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897.⁵ Finally, and

Page 563

most important, the 'voluntary abandonment' rule does not dispense with the requirement of a continuing controversy, nor could it under the definition of the judicial power in Article III of the Constitution. Voln tary cessation of unlawful conduct does make a case moot 'if the defendant can demonstrate that 'there is no reasonable expectation that the wrong will be repeated." Id., at 633, 73 S.Ct., at 897.⁶ Since that is the situation here, the case would be moot even if it could be said that it became so by the House's 'voluntary abandonment' of its 'practice' of excluding Congressman Powell.

          The petitioners' proposition that conduct of the 91st Congress has perpetuated the controversy is based on the fact that House Resolution No. 2—the same resolution by which the House voted to seat Powell—fined him $25,000 and provided that his seniority was to commence as of the date he became a member of the 91st Congress.⁷ That punishment, it is said, 'arises out of the

Page 564

prior actions of the House which originally impelled this action.' It is indisputable, however, that punishment of a House member involves constitutional issues entirely distinct from those raised by exclusion,⁸ and that a punishment in one Congress is in no legal sense a 'continuation' of an exclusion from the previous Congress. A judicial determination that the exclusion was improper would have no bearing on the constitutionality of the punishment, nor any conceivable practical impact on Powell's status in the 91st Congress. It is thus clear that the only connection between the exclusion by the 90th Congress and the punishment by the 91st is that they were evidently based on the same asserted derelictions of Congressman Powell. But this action was not brought to exonerate Powell or to expunge the legislative findings of his wrongdoing; its only purpose was to restrain the action taken in consequence of those findings—Powell's exclusion.

          Equally without substance is the petitioners' contention that this case is saved from mootness by application of the asserted 'principle' that a case challenging allegedly unconstitutional conduct cannot be rendered moot

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by further unconstitutional conduct of the defendants. Under this hypothesis, it is said that the 'Court can not determine that the conduct of the House of January 3, 1969, has mooted this controversy without inferentially, at least, holding that the action of the House of that day was legal and constitutionally permissible.' If there is in our jurisprudence any doctrine remotely resembling the petitioners' theory—which they offer without reference to any authority—it has no conceivable relevance to this case. For the events of January 3, 1969, that made this case moot were the termination of the 90th Congress and Powell's seating in the 91st, not the punishment which the petitioners allege to have been unconstitutional. That punishment is wholly irrelevant to the question of mootness and is in no wise before the Court in this case.

          The passage of time and intervening events have, therefore, made it impossible to afford the petitioners the principal relief they sought in this case. If any aspect of the case remains alive, it is only Congressman Powell's individual claim for the salary of which he was deprived by his absence from the 90th Congress.⁹ But even if that claim can be said to prevent this controversy from being moot, which I doubt, there is no need to reach the fundamental constitutional issues that the Court today undertakes to decide.

          This Court has not in the past found that an incidental claim for back pay preserves the controversy between a legislator and the legislative body which evicted him, once the term of his eviction has expired. Alejandrino v. Quezon, 271 U.S. 528, 46 S.Ct. 600, 70 L.Ed. 1071, was a case nearly identical to

Page 566

that before the Court today. The petitioner was a member of the Senate of the Philippines who had been suspended for one year for assaulting a colleague. He brought an action in the Supreme Court of the Philippines against the elected members of the Senate¹⁰ and its officers and employees (the President, Secretary, Sergeant at Arms, and Paymaster), seeking a writ of mandamus and an injunction restoring him to his seat and to all the privileges and emoluments of office. The Supreme Court of the Philippines dismissed the action for want of jurisdiction and Alejandrino brought the case here,¹¹ arguing that th suspension was not authorized by the Philippine Autonomy Act, a statute which incorporated most of the provisions of Article I of the United States Constitution.¹²

Page 567

          Because the period of the suspension had expired while the case was pending on certiorari, a unanimous Court, in an opinion by Chief Justice Taft, vacated the judgment and remanded the case with directions to dismiss it as moot. To Alejandrino's claim that his right to back pay kept the case alive, the Court gave the following answer, which, because of its particular pertinency to this case, I quote at length:

          'It may be suggested, as an objection to our vacating the action of the court below, and directing the dismissal of the petition as having become a moot case, that, while the lapse of time has made unnecessary and futile a writ of mandamus to restore Senator Alejandrino to the Island Senate, there still remains a right on his part to the recovery of his emoluments, which were withheld during his suspension, and that we ought to retain the case for the purpose of determining whether he may not have a mandamus for this purpose. * * * It is difficult for the Court to deal with this feature of the case, which is really only a mere incident to the main question made in the petition and considered in the able and extended brief of counsel for the petitioner and the only brief before us. That brief is not in any part of it directed to the subject of emoluments, nor does it refer us to any statute or to the rules of the Senate by which the method of paying Senators' salaries is provided, or in a definite way describe the duties of the officer or officers or committee charged with the ministerial function of paying them.

          '* * * the remedy of the Senator would seem to be by mandamus to compel such official in the discharge of his ministerial duty to pay him the salary due, and the presence of the Senate as a party would be

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          unnecessary. Should that official rely upon the resolution of the Senate as a reason for refusing to comply with his duty to pay Senators, the validity of such a defense and the validity of the resolution might become a judicial question affecting the personal right of the complaining Senator, properly to be disposed of in such action but not requiring the presence of the Senate as a party for its adjudication. The right of the petitioner to his salary does not therefore involve the very serious issue raised in this petition as to the power of the Philippine Supreme Court to compel by mandamus one of the two legislative bodies constituting the e gislative branch of the government to rescind a resolution adopted by it in asserted lawful discipline of one of its members, for disorder and breach of privilege. We think, now that the main question as to the validity of the suspension has become moot, the incidental issue as to the remedy which the suspended Senator may have in recovery of his emoluments if illegally withheld, should properly be tried in a separate proceeding against an executive officer or officers as described. As we are not able to derive from the petition sufficient information upon which properly to afford such a remedy, we must treat the whole cause as moot and act accordingly. This action on our part of course is without prejudice to a suit by Senator Alejandrino against the proper executive officer or committee by way of mandamus or otherwise to obtain payment of the salary which may have been unlawfully withheld from him.' 271 U.S., at 533, 534—535, 46 S.Ct., at 601. ¹³

Page 569

          Both of the factors on which the Court relied in Alejandrino are present in this case. Indeed, the salary claim is an even more incidental and subordinate aspect of this case than it was of Alejandrino.¹⁴ And the availability of effective relief for that claim against any of the present respondents is far from certain. As in Alejandrino, the briefs and memoranda submitted by the parties in this case contain virtually no discussion of this question—the only question of remedy remaining in the case. It appears from relevant provisions of law, however, that the Sergeant at Arms of the House—an official newly

Page 570

elected by each Congress¹⁵—is responsible for the retention and disbursement to Congressmen of the funds appropriated for their salaries. These funds are payable from the United States Treasury¹⁶ upon requisitions presented by the Sergeant at Arms, who is entrusted with keeping the books and accounts 'for the compensation and mileage of Members.'¹⁷ A Congressman who has presented his credentials and taken the oath of office¹⁸ is entitled to be paid monthly on the basis of certificates of the Clerk¹⁹ and Speaker of the House.²⁰ Powell's prayer for a mandamus and an injunction against the Sergeant at Arms is presumably based on this statutory scheme.

          Several important questions remain unanswered, however, on this record. Is the Sergeant at Arms the only necessary defendant? If so, the case is surely moot as to the other respondents, including the House members, and they should be dismissed as parties on that ground rather than after resolution of difficult constitutional questions under the Speech or Debate Clause. But it is far from clear that Powell has an appropriate or adequate remedy against the remaining respondents. For if the Speaker does not issue the requisite certificates and the House does not rescind Resolution No. 278, can the House agents be enjoined to act in direct contravention of the orders of their employers? Moreover, the office of Sergeant at Arms of the 90th Congress has now expired, and the present Sergeant at Arms serves the 91st Congress. If he were made a party in that capacity, would he have the authority—or could the 91st Congress

Page 571

confer the authority—to disburse money for a salary owed to a Representative in the previous Congress, particularly one who never took the oath of office? Presumably funds have not been appropriated to the 91st Congress or requisitioned by its Sergeant at Arms for the payment of salaries to members of prior Congresses. Nor is it ascertainable from this record whether money appropriated for Powell's salary by the 90th Congress, if any, remains at the disposal of the current House and its Sergeant at Arms.²¹

          There are, then substantial questions as to whether, on his salary claim, Powell could obtain relief against any or all of these respondents. On the other hand, if he was entitled to a salary as a member of the 90th Congress, he has a certain and completely satisfactory remedy in an action for a money judgment against the United States in the Court of Claims.²² While that court could not have ordered Powell seated or entered a declaratory judgment on the constitutionality of his exclusion,²³ it

Page 572

is not disputed that the Court of Claims could grant him a money judgment for lost salary on the ground that his discharge from the House violated the Constitution. I would remit Congressman Powell to that remedy, and not simply because of the serious doubts about the availability of the one he now pursues. Even if the mandatory relief sought by Powell is appropriate and could be effective, the Court should insist that the salary claim be litigated in a context that would clearly obviate the need to decide some of the constitutional questions with which the Court grapples today, and might avoid them altogether.²⁴ In an action in the Court of Claims for a money judgment against the United States, there would be no question concerning the impact of the Speech or Debate Clause on a suit against members of the House of Representatives and their agents, and questions of jurisdiction and justiciability would, if raised at all, be in a vastly different and more conventional form.

          In short, dismissal of Powell's action against the legislative branch would not in the slightest prejudice his money claim,²⁵ and it would avoid the necessity of decid-

Page 573

ing constitutional issues which, in the petitioners' words, 'touch the bedrock of our political system (and) strike at the very heart of representative government.' If the fundamental principles restraining courts from unnecessarily or prematurely reaching out to decide grave and perhaps unsettling constitutional questions retain any vitality, see Ashwander v. TVA, 297 U.S. 288, 346—348, 56 S.Ct. 466, 482—483, 80 L.Ed. 688 (Brandeis, J., concurring), surely there have been few cases more demanding of their application than this one. And those principles are entitled to special respect in suits, like this suit, for declaratory and injunctive relief, which it is within a court's broad discretion to withhold. 'We have cautioned against declaratory judgments on issues of public moment, even falling short of constitutionality, in speculative situations.' Public Affairs Associates, Inc. v. Rickover, 369 U.S. 111, 112, 82 S.Ct. 580, 582, 7 L.Ed.2d 604. 'Especially where governmental action is involved, courts should not intervene unless the need for equitable relief is clear, not remote or speculative.' Eccles v. Peoples Bank of Lakewood Village, 333 U.S. 426, 431, 68 S.Ct. 641, 644, 192 L.Ed. 784.

          If this lawsuit is to be prolonged, I would at the very least not reach the merits without ascertaining that a decision can lead to some effective relief. The Court's remand for determination of that question implicitly recognizes that there may be no remaining controversy between petitioner Powell and any of these respondents redressable by a court, and that its opinion today may e wholly advisory. But I see no good reason for any court even to pass on the question of the availability

Page 574

of relief against any of these respondents. Because the essential purpose of the action against them is no longer attainable and Powell has a fully adequate and far more appropriate remedy for his incidental back-pay claim, I would withhold the discretionary relief prayed for and terminate this lawsuit now. Powell's claim for salary may not be dead, but this case against all these respondents is truly moot. Accordingly, I would vacate the judgment below and remand the case with directions to dismiss the complaint.

^{1. Powell requested that he be given (1) notice of the charges pending against him, including a bill of particulars as to any accuser; (2) the opportunity to confront any accuser, to attend all committee sessions where evidence was given, and the right to cross-examine all witnesses; (3) public hearings; (4) the right to have the Select Committee issue its process to summon witnesses for his defense; (5) and a transcript of every haring. Hearings on H.R.Res. No. 1 before Select Committee Pursuant to H.R.Res. No. 1 90th Cong., 1st Sess., 54 (1967).}

The Select Committee noted that it had given Powell notice of the matters it would inquire into, that Powell had the right to attend all hearings (which would be public) with his counsel, and that the Committee would call witnesses upon Powell's written request and supply a transcript of the hearings. Id., at 59.

^2. The complaint also attacked the House Resolution as a bill of attainder, an ex post facto low, and as cruel and unusual punishment. Further, petitioners charged that the hearing procedures adopted by the Select Committee violated the Due Process Clause of th Fifth Amendment.

^3. The District Court refused to convene a three-judge court and the Court of Appeals affirmed. Petitioners did not press this issue in their petition for writ of certiorari, apparently recognizing the validity of the Court of Appeals' ruling. See Stamler v. Willis, 393 U.S. 217, 89 S.Ct. 395, 21 L.Ed.2d 356 (1968).

^4. Petitioners also requested that a writ of mandamus issue ordering that the named officials perform the same acts.

^5. The District Court entered its order April 7, 1967, and a notice of appeal was filed the same day. On April 11, 1967, Powell was re-elected to the House of Representatives in a special election called to fill his seat. The formal certification of election was received by the House on May 1, 1967, but Powell did not again present himself to the House or ask to be given the oath of office.

^6. Respondents' authority for this assertion is a footnote contained in Gojack v. United States, 384 U.S. 702, 707, 86 S.Ct. 1689, 1693, 16 L.Ed.2d 870, n. 4. (1966): 'Neither the House of Representatives nor its committees are continuing bodies.'

^7. The rule that this Court lacks jurisdiction to consider the merits of a moot case is a branch of the constitutional command that the judicial power extends only to cases or controversies. See Sibron v. New York, 392 U.S. 40, 57, 88 S.Ct. 1889, 1899, 20 L.Ed.2d 917 (1968); R. Robertson & F. Kirkham, Jurisdiction of the Supreme Court of the United States §§ 270—271 (R. Wolfson & P. Kurland ed. 1951); Diamond, Federal Jurisdiction To Decide Moot Cases, 94 U.Pa.L.Rev. 125 (1946); Note, Cases Moot on Appeal: A Limit on the Judicial Power, 103 U.Pa.L.Rev. 772 (1955).

^8. Petitioners do not press their claim that respondent McCormack should be required to administer the oath to Powell, apparently conceding that the seating of Powell has rendered this specific claim moot. Where several forms of relief are requested and one of these requests subsequently becomes moot, the Court has still considered the remaining requests. See Standard Fashion Co. v. Magrane-Houston Co., 258 U.S. 346, 353, 42 S.Ct. 360, 361, 66 L.Ed. 653 (1922). Respondents also argue that the seating of petitioner Powell has mooted the claims of Powell's constituents. Since this case will be remanded, that issue as well as petitioners' other claims can be disposed of by the court below.

^9. Alejandrino's brief did not consider either the possibility that his request for injunctive relief had become moot or whether his salary claim required that the Court treat the propriety of his suspension. No brief was filed on behalf of respondents.

^10. After discussing the insufficiency of Alejandrino's averments as to the officer responsible for his salary, the Court stated: 'Were that set out, the remedy of the Senator would seem to be by mandamus to compel such official in the discharge of his miniterial duty to pay him the salary due * * *.' 271 U.S. at 534, 46 S.Ct., at 602. That the insufficiency of Alejandrino's averments was the reason for dismissal is further substantiated by a later passage: 'As we are not able to derive from the petition sufficient information upon which properly to afford such a remedy (mandamus), we must treat the whole cause as moot and act accordingly.' Id., at 535, 46 S.Ct., at 602.

^11. Paragraph 18b of petitioners' complaint avers that 'Leake W. Johnson, as Sergeant-at-Arms of the House' is responsible for and refuses to pay Powell's salary and prays for an injunction restraining the Sergeant at Arms from implementing the House resolution depriving Powell of his salary as well as mandamus to order that the salary be paid.

^12. Federal courts were first empowered to grant declaratory judgments in 1934, see 48 Stat. 955, 10 years after Alejandrino filed his complaint.

^13. It was expressly stated in Alejandrino that a properly pleaded mandamus action could be brought, 271 U.S., at 535, 46 S.Ct. at 602, impliedly holding that Alejandrino's salary claim had not been mooted by the expiration of his suspension.

^14. Respondents do not supply any substantiation for their assertion that the term of the Georgia Legislature did not expire until December 31. Presumably, they base their statement upon Ga.Code Ann. §§ 2—1601, 2—1603 (Supp.1968).

^15. Respondents also suggest that Bond is not applicable because the parties in Bond had stipulated that Bond would be entitled to back salary if his constitutional challenges were accepted, while there is no stipulation in this case. However, if the claim in Bond was moot, a stipulation by the parties could not confer jurisdiction. See, e.g., California v. San Pablo & Tulare R. Co., 149 U.S. 308, 314, 13 S.Ct. 876, 878, 37 L.Ed. 747 (1893).

^16. Since the court below disposed of this case on grounds of justiciability, it did not pass upon whether Powell had brought an appropriate action to recover his salary. Where a court of appeals has misconceived the applicable law and therefore failed to pass upon a question, our general practice has been to remand the case to that court for consideration of the remaining issues. See, e.g., Utah Pie Co. v. Continental Baking Co., 386 U.S. 685, 704, 87 S.Ct. 1326, 1337, 18 L.Ed.2d 406 (1967); Bank of America National Trust & Savings Assn. v. Parnell, 352 U.S. 29, 34, 77 S.Ct. 119, 121, 1 L.Ed.2d 93 (1956). We believe that such action is appropriate for resolution of whether Powell in this litigation is entitled to mandamus against the Sergeant at Arms for salary withheld pursuant to the House resolution.

^17. Article I, § 6, provides: 'for any Speech or Debate in either House, they (Senators and Representatives) shall not be questioned in any other Place.'

^18. Petitioners ask the Court to draw a distinction between declaratory relief sought against members of Congress and either an action for damages or a criminal prosecution, emphasizing that our four previous cases concerned 'criminal or civil sanctions of a deterrent nature.' Brief for Petitioners 171.

^19. See 5 Debates on the Federal Constitution 406 (J. Elliot ed. 1876); 2 Records of the Federal Convention of 1787, p. 246 (M. Farrand rev. ed. 1966) (hereinafter cited as Farrand).

^20. The English Bill of Rights contained a provision substantially identical to Art. I, § 6: 'That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament.' 1 W. & M., Sess. 2, c. 2. The English and American colonial history is traced in some detail in Cella, The Doctrine of Legislative Privilege of Freedom of Speech and Debate: Its Past, Present and Future as a Bar to Criminal Prosecutions in the Courts, 2 Suffolk U.L.R.ev. 1, 3—16 (1968), and Yankwich, The Immunity of Congressional Speech—Its Origin, Meaning and Scope, 99 U.Pa.L.Rev. 960, 961—966 (1951).

^21. United States v. Johnson, 383 U.S. 169, 182—183, 86 S.Ct. 749, 756—757 (1966).

^22. 1 The Works of James Wilson 421 (R. McCloskey ed. 1967).

^23. In Dombrowski $500,000 in damages was sought against a Senator and the chief counsel of a Senate Subcommittee chaired by that Senator. Record in No. 118, O.T.1966, pp. 10—11. We affirmed the grant of summary judgment as to the Senator but reversed as to subcommittee counsel.

^24. The Court in Kilbourn quoted extensively from Stockdale v. Hansard, 9 Ad. & E. 1, 114, 112 Eng.Rep. 1112, 1156 (Q.B.1839), to refute the assertion that House agents were immune because they were executing orders of the House: '(I)f the Speaker, by authority of the House, order an illegal Act, though that authority shall exempt him from question, his order shall no more justify the person who executed it than King Charles's warrant for levying ship-money could justify his revenue officer.' Kilbourn eventually recovered $20,000 against Thompson. See Kilbourn v. Thompson, MacArth. & M. 401, 432 (Sup.Ct.D.C.1883).

^25. A Congressman is not by virtue of the Speech or Debate Clause absolved of the responsibility of filing a motion to dismiss and the trial court must still determine the applicability of the clause to plaintiff's action. See Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 788 (1951).

^26. Given our disposition of this issue, we need not decide whether under the Speech or Debate Clause petitioners would be entitled to maintain this action solely against members of Congress where no agents participated in the challenged action and no other remedy was available. Cf. Kilbourn v. Thompson, 103 U.S. 168, 204—205 (1881). and no other remedy was available.

^27. Powell was 'excluded' from the 90th Congress, i.e., he was not administered the oath of office and was prevented from taking his seat. If he had been allowed to take the oath and subsequently had been required to surrender his seat, the House's action would have constituted an 'x plusion'. Since we conclude that Powell was excluded from the 90th Congress, we express no view on what limitations may exist on Congress' power to expel or otherwise punish a member once he has been seated.

^28. House Resolution No. 278, as amended and adopted, provided: 'That said Adam Clayton Powell * * * be and the same hereby is excluded from membership in the 90th Congress * * *.' 113 Cong.Rec. 5020. (Emphasis added.)

^29. Other Congresses have expressed an identical view. The Report of the Judiciary Committee cn cerning the proposed expulsion of William S. King and John G. Schumaker informed the House:

'Your committee are of opinion that the House of Representatives has no authority to take jurisdiction of violations of law or offenses committed against a previous Congress. This is purely a legislative body, and entirely unsuited for the trial of crimes. The fifth section of the first article of the Constitution authorizes 'each house to determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.' This power is evidently given to enable each house to exercise its constitutional function of legislation unobstructed. It cannot vest in Congress a jurisdiction to try a member for an offense committed before his election; for such offense a member, like any other citizen, is amenable to the courts alone.' H.R.Rep.No.815, 44th Cong., 1st Sess., 2 (1876).

See also 15 Cong.Rec. 4434 (1884) (ruling of the Speaker); H.R.Rep.No.81, 42d Cong., 3d Sess., 8 (1873) (expulsion of James Brooks and Oakes Ames); H.R.Rep.No.179, 35th Cong., 1st Sess., 4—5 (1858) (expulsion of Orsamus B. Matteson).

^30. We express no view as to whether such a ruling would have been proper. A further distinction between expulsion and exclusion inheres in the fact that a member whose expulsion is contemplated may as a matter of right address the House and participate fully in debate while a member-elect apparently does not have a similar right. In prior cases the member whose expulsion was under debate has been allowed to make a long and often impassioned defense. See Cong. Globe, 42d Cong., 3d Sess., 1723 (1873) (expulsion of Oakes Ames); Cong. Globe, 41st Cong., 2d Sess., 1524—1525, 1544 (1870) (expulsion of B. F. Whittermore); Cong. Globe, 34th Cong., 3d Sess., 925—926 (1857) (expulsion of William A. Gilbert); Cong. Globe, 34th Cong., 3d Sess., 947—951 (1857) (expulsion of William W. Welch); 9 Annals of Cong. 2966 (1799) (expulsion of Matthew Lyon). On at least one occasion the member has been allowed to cross-examine other members during the expulsion debate. 2 A. Hinds, Precedents of the House of Representatives § 1643 (1907).

^31. A motion for the previous question is a debate-limiting device which, when carried, has the effect of terminating debate and of forcing a vote on the subject at hand. See Rules of the House of Representatives, H.R.Doc.No.529, 89th Cong., 2d Sess., §§ 804—809 (1967); Cannon's Procedure in the House of Representatives, H.R.Doc.No.610, 87th Cong., 2d Sess., 277—281 (1963).

^32. Eckhardt, The Adam Clayton Powell Case, 45 Texas L.Rev. 1205, 1209 (1967). The views of Congressman Eckhardt were echoed during the exclusion proceedings. Congressman Cleveland stated that, although he voted in favor of and supported the Select Committee's recommendation, if the exclusion amendment received a favorable vote on the motion for the previous question, then he would support the amendment 'on final passage.' 113 Cong.Rec. 5031. Congressman Gubser was even more explicit:

'I shall vote against the previous question on the Curtis amendment simply because I believe future and perfecting amendments should be allowed. But if the previous question is ordered, then I will be placed on the horns of an impossible dilemma.

'Mr. Speaker, I want to expel Adam Clayton Powell, by seating him first, but that will not be my choice when the Curtis amendment is before us. I will be forced to vote for exclusion, about which I have great constitutional doubts, or to vote for no punishment at all. Given this raw and isolated issue, the only alternative I can follow is to vote for the Curtis amendment. I shall do so, Mr. Speaker, with great reservation.' Ibid.

^33. Although each judge of the panel wrote a separate opinion, all were clear in stating that the District Court possessed subject matter jurisdiction. Powell v. McCormack, 129 U.S.App.D.C. 354, 368, 384, 385, 395 F.2d 577, 591, 607, 608 (1968).

^34. We have determined that the case is not moot. See Part II, supra.

^35. Indeed, the thrust f respondents' argument on this jurisdictional issue is similar to their contentions that this case presents a nonjusticiable 'political question.' They urge that it would have been 'unthinkable' to the Framers of the Constitution for courts to review the decision of a legislature to exclude a member. However, we have previously determined that a claim alleging that a legislature has abridged an individual's constitutional rights by refusing to seat an elected representative constitutes a 'case or controversy' over which federal courts have jurisdiction. See Bond v. Floyd, 385 U.S. 116, 131, 87 S.Ct. 339, 347, 17 L.Ed.2d 235 (1966). To the extent the expectations of the Framers are discernible and relevant to this case, they must therefore relate to the special problem of review by federal courts of actions of the federal legislature. This is of course a problem of separation of powers and is to be considered in determining justiciability. See Baker v. Carr, 369 U.S. 186, 210, 82 S.Ct. 691, 706 (1962).

^36. Brief for Respondents 39.

^37. Petitioners' complaint is predicated, inter alia, on several sections of Article I, Article III, and several amendments to the Constitution. Respondents do not challenge the substantiality of these claims.

^38. Act of May 31, 1870, § 23, 16 Stat. 146. The statute is now 28 U.S.C. § 1344.

^39. See Cong.Globe, 41st Cong., 2d Sess., 3872 (1870).

^40. Respondents rely on Barry v. United States ex rel. Cunningham, 279 U.S. 597, 49 S.Ct. 452, 73 L.Ed. 867 (1929). Barry involved the power of the Senate to issue an arrest warrant to summon a witness to give testimony concerning a senatorial election. The Court ruled that issuance o the warrant was constitutional, relying on the power of the Senate under Art. I, § 5, to be the judge of the elections of its members. Respondents particularly rely on language the Court used in discussing the power conferred by Art. I, § 5. The Court noted that under § 5 the Senate could 'render a judgment which is beyond the authority of any other tribunal to review.' Id., at 613, 49 S.Ct. at 455.

Barry provides no support for respondents' argument that this case is not justiciable, however. First, in Barry the Court reached the merits of the controversy, thus indicating that actions allegedly taken pursuant to Art. I, § 5, are not automatically immune from judicial review. Second, the quoted statement is dictum; and, later in the same opinion, the Court noted that the Senate may exercise its power subject 'to the restraints imposed by or found in the implications of the Constitution.' Id., at 614, 49 S.Ct. at 455. Third, of course, the statement in Barry leaves open the particular question that must first be resolved in this case: the existence and scope of the textual commitment to the House to judge the qualifications of members.

^41. In addition to the three qualifications set forth in Art. I, § 2, Art. I, § 3, cl. 7, authorizes the disqualification of any person convicted in an impeachment proceeding from 'any Office of honor, Trust or Profit under the United States'; Art. I, § 6, cl. 2, provides that 'no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office'; and § 3 of the 14th Amendment disqualifies any person 'who, having previously taken an oath * * * to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.' It has been argued that each of these provisions, as well as the Guarantee Clause of Article IV and the oath requirement of Art. VI, cl. 3, is no less a 'qualification' within the meaning of Art. I, § 5, than those set forth in Art. I, § 2. Dionisopoulos, A Commentary on the Constitutional Issues in the Powell and Related Cases, 17 J.Pub.L. 103, 111—115 (1968). We need not reach this question, however, since both sides agree that Powell was not ineligible under any of these provisions.

^42. Consistent with this interpretation, federal courts might still be barred by the political question doctrine from reviewing the House's factual determination that a member did not meet one of the standing qualifications. This is an issue not presente in this case and we express no view as to its resolution.

^43. Indeed, the force of respondents' other arguments that this case presents a political question depends in great measure on the resolution of the textual commitment question. See Part VI, B(2), infra.

^44. Since Art. I, § 5, cl. 1, applies to both Houses of Congress, the scope of the Senate's power to judge the qualifications of its members necessarily is identical to the scope of the House's power, with the exception, of course, that Art. I, § 3, cl. 3, establishes different age and citizenship requirements for membership in the Senate.

^45. Since the reign of Henry IV (1399—1413), no clergyman had sat in the House of Commons. 1 E. Porritt, The Unreformed House of Commons 125 (1963).

^46. Because the British do not have a written constitution, standing incapacities or disqualifications for membership in Parliament are derived from 'the custom and law of parliament.' 1 W. Blackstone's Commentaries *162; see id., at *175. The groups thus disqualified as of 1770 included aliens; minors; judges who sat in the House of Lords; clergy who were represented in their own convocation; persons 'attainted of treason or felony'; sheriffs, mayors, and bailiffs as representatives for their own jurisdictions; and certain taxing officials and officers of the Crown. Id., at *175—176. Not until the exclusion of John Wilkes, discussed infra, did Blackstone subscribe to the theory that, in addition, the Commons could declare ineligible an individual 'in particular (unspecified) circumstances * * * for that parliament' if it deemed him unfit to serve on grounds not encompassed by the recognized standing incapacities. As we explain, infra, this position was subsequently repudiated by the House in 1782. A Clerk of the House of Commons later referred to cases in which this theory was relied upon 'as examples of an excess of * * * jurisdiction by the Commons; for one house of Parliament cannot create a disability unknown to the law.' T. May's Parliamentary Practice 67 (13th ed. T. Webster 1924).

^47. In 1619, the Virginia House of Burgesses challenged the eligibility of certain delegates on the ground that they did not hold their plantations under proper patents from the Virginia Company in England. See generally 7 The Federal and State Constitutions, Colonia Charters, and Other Organic Laws 3783—3810 (F. Thorpe ed. 1909) (hereinafter cited as Thorpe). One of them, a Captain Warde, was admitted on condition that he obtain the necessary patent. The others, representatives from Martin's Brandon plantation, were excluded on the ground that the owner of the plantation had claimed that his patent exempted him from the colony's laws. See Journals of the House of Burgesses of Virginia: 1619—1658/59, pp. 4—5 (1915); M. Clarke, Parliamentary Privilege in the American Colonies 133—134 (1943). The questions presented by these two cases, therefore, seem to be jurisdictional in nature; that is, an attempt was made to gain representation for plantations over which the assembly may have had no power to act. Thus viewed these cases are analogous to the exclusions for failure to comply with standing qualifications. They certainly are not precedents which support the view that a legislative body could exclude members for mere character defects or prior misconduct disapproved by the assembly. See generally Clarke, supra, at 132—204; J. Greene, The Quest for Power: The Lower Houses of Assembly in the Southern Royal Colonies: 1689—1776, pp. 171—204 (1963).

^48. For example, in 1585 the Commonse xpelled a Doctor Parry for unspecified misbehavior. A Compleat Journal of the Votes, Speeches and Debates of the House of Lords and House of Commons Throughout the Whole Reign of Queen Elizabeth, of Glorious Memory 352 (S. D'Ewes ed. 1708); and in 1628 Sir Edmund Sawyer was expelled because he had sought to induce a witness to suppress evidence against Sir Edmund in testimony before the House. 1 H.C.Jour. 917.

^49. In expelling Sir Edmund Sawyer in 1628, the Commons declared 'him to be unworthy ever to serve as a Member of this House.' Ibid. Almost identical language was used in the expulsion of H. Benson in 1941. 2 id., at 301. But by 1642, the formula had been changed to 'disabled to serve any longer in this Parliament as a Member of this House. * * *' Id., at 703. (Emphasis added.) By the 18th century it was apparently well established that an expulsion by the House of Commons could last no longer than the duration of the Parliament from which the member was expelled. See 1 W. Blackstone's Commentaries *176.

^50. For example, in 1652, the Virginia House of Burgesses expelled two members for prior conduct disapproved by the assembly, Journals of the House of Burgesses, supra, at 85; and in 1683, Rhode Island expelled a member 'from acting in this present Assembly' for refusing to answer a court summons. 1 S. Arnold, History of the State of Rhode Island and Providence Plantations 289 (1859). See generally Clarke, supra, at 173—204.

^51. In 1726, the Massachusetts House of Representatives excluded Gershom Woodle, who had been expelled on three previous occasions as 'unworthy to be a Member.' 7 Journals of the House of Representatives of Massachusetts 1726—1727, pp. 4—5, 15, 68—69 (1926). In 1758, North Carolina expelled Francis Brown for perjury. He was re-elected twice in 1760 and excluded on both occasions; however, when he was elected at the 1761 general elections, he was allowed to take his seat. 5 Colonial Records of North Carolina 1057—1058 (1887); 6 id., at 374, 474, 662—663, 672 673 (1888). There may have been similar exclusions of two men elected in 1710 to the New Jersey Assembly. See Clarke, supra, at 197—198.

^52. Significantly, the occasional assumption of this broader expulsion power did not go unchallenged, Clarke, supra, at 196 202; and it was not supported by the only parliamentary precedent, the Walpole case.

^53. Pursuant to a general warrant, Wilkes was arrested, his home ransacked, and his private papers seized. In his later election campaigns, Wilkes denounced the use of general warrants, asserting that he was fighting for liberty itself. See 11 L. Gipson, the British Empire Before the American Revolution 213—214 (1965).

^54. The issue before the Commons was clear: Could the Commons 'put in any disqualification, that is not put in by the law of the land.' 1 H. Cavendish's Debates 384 (J. Wright ed. 1841). The affirmative answer was somewhat less than resounding. After Wilkes' third re-election, the motion to seat his opponent carried 197 to 143.

^55. The validity of the House's action against Wilkes rested to a large extent on the validity of the Walpole precedent. Taswell-Langmead's, supra, at 585. Thus, the House of Commons resolution expunging, as subversive to the rights of the whole electorate, the action taken against Wilkes was also a tacit repudiation of the similar action taken against Walpole in 1712.

^56. English law is apparently the same today. See T. May's Parliamentary Practice 105—108 (17th ed. B. Cocks 1964).

^57. The Council of Censors was established by the 1776 Pennsylvania Constitution. It was an elected body that was specifically charged with the duty 'to enquire whether the constitution has been preserved inviolate in every part; and whether the legislative and executive branches of government have performed their duty as guardians of the people, or assumed to themselves, or exercised other or greater powers than they are intitled to by the constitution.' Pa.Const. of 1776, § 47, 5 Thorpe 3091. See Pennsylvania Convention Proceedings: 1776 and 1790, Introduction, iv (1825).

^58. In discussing the case, respondents characterize the earlier action as an exclusion. The Council of Censors, however, stated that the

general assembly had resolved that the member 'is expelled from his seat.' Pennsylvania Convention Procedings, supra, at 89. The account of the dissenting committee members suggests that the term expulsion was properly used. They note that in February 1783 the assembly received a letter from the Comptroller General charging the assemblyman with fraud. Not until September 9, 1783, did the assembly vote to expel him. Presumably, he held his seat until that time. But, even if he had been excluded, arguably he was excluded for not meeting a standing incapacity, since the Pennsylvania Constitution of 1776 required assemblymen to be 'most noted for wisdom and virtue.' Pa.Const. of 1776, § 7, 5 Thorpe 3084. (Emphasis added.) In fact, the dissenting members of the Committee argued that the expelled member was ineligible under this very provision. Pennsylvania Convention Proceedings, supra, at 89.

Respondents cite one other exclusion during the period between the Declaration of Independence and the Constitutional Convention 11 years later. In 1780 the Virginia Assembly excluded John Breckenridge because he was a minor. Minority, of course, was a traditional standing incapacity, and Charles been cr rect in concluding that this exclusion been correct in concluding that this exlcusion was probably based upon an interpretation of the state constitutional requirement that members must be duly qualified according to law. Va.Const., 7 Thorpe 3816. See C. Warren, The Making of the Constitution 423, n. 1 (1928). Respondents, based upon their misinterpretation of the Pennsylvania case just discussed, criticize Charles Warren for concluding that there had been only one exclusion during this period. Our research, however, has disclosed no other cases.

^59. Wilkes had established a reputation both in England and the Colonies as a champion of free elections, freedom from arbitrary

arrest and seizure, and freedom of the press. See 11 Gipson, supra, at 191—222.

^60. See R. Postgate, That Devil Wilkes 171—172, 173—174 (1929). During the House of Commons debates in 1781, a member remarked that expelling Wilkes had been 'one of the great causes which had separated * * * (England) from America.' 22 Parl.Hist.Eng. 100—101 (1781).

The writings of the pamphleteer 'Junius'

The writings of the pamphleteer 'Junius' were widely reprinted in colonial newspapers and lent considerable support to the revolutionary cause. See 3 Dictionary of American History 190 (1940). Letter XVIII of the 'Letters of Junius' bitterly attacked the exclusion of Wilkes. This letter, addressed to Blackstone, asserted:

'You cannot but know, sir, that what was Mr. Wilkes's case yesterday may be yours or mine to-morrow, and that, consequently the common right of every subject of the realm is invaded by it. * * * If the expulsion of a member, not under any legal disability, of itself creates in him an incapacity to be elected, I see a ready way marked out, by which the majority may, at any time, remove the honestest and ablest men who happen to be in opposition to them. To say that they will not make this extravagant use of their power would be a language unfit for a man so learned in the laws as you are. By your doctrine, sir, they have the power: and laws, you know, are intended to guard against what men may do, not to trust to what they will do.' 1 Letters of Junius, Letter XVIII, p. 118 (1821).

^61. See Warren, supra, at 399—426.

^62. Dickinson also said that a built-in veneration for wealth would be inconsistent with the republican ideal that merit alone should determine who holds the public trust. 2 Farrand 123.

^63. On August 10, a delegate moved to reconsider the citizenship qualification. The delegate proposed to substitute a three-year requirement for the seven-year requirement already agreed upon. The motion passed. Id., at 251. However, when this proposal was considered on August 13, it was rejected. Id., at 265 266.

infra.

^64. Charles Pinckney proposed that the President, judges, and legislators of the United States be required to swear that they possessed a specified amount of unincumbered property. Benjamin Franklin expressed his strong opposition, observing that '(s)ome of the greatest rogues he was ever acquainted with, were the richest rogues.' Id., at 249. He voiced the fear that a property requirement would 'discourage the common people from removing to this Country.' Ibid. Thereafter, 'the Motion of Mr. Pinkney (sic) was rejected Motion of Mr. Pinkney (sic) was rejected by so general a no, that the States were not called.' Ibid. (Emphasis in original.)

^65. 'That the right of the electors to be represented by men of their own choice, was so essential for the preservation of all their other rights, that it ought to be considered as one of the most sacred parts of our constitution. * * * That the law of the land had regulated the qualifications of members to serve in parliament, and that the freeholders * * * had an indisputable right to return whom they thought proper, provided he was not disqualified by any of those known laws. * * * They are not occasional but fixed: to rule and govern the question as it shall arise; not to start up on a sudden, and shift from side to side, as the caprice of the day or the fluctuation of party shall direct.' 16 Parl.Hist.Eng. 589—590 (1769).

^66. Id., at 589.

^67. Wilkes had made essentially the same argument in one of his early attempts to have the resolutions denying him a seat expunged:

'This usurpation, if acquiesced under, would be attended with the most alarming consequences. If you can reject those disagreeable to a majority, and expel whom you please, the House of Commons will be self-created and self-existing. You may expel til you approve, and thus in effect you nominate. The original idea of this House being the representative of the Commons of the realm will be lost.' 18 Parl.Hist.Eng. 367 (1775).

^68. Charles Warren concluded that 'Madison's reference was undoubtedly to the famous election case of John Wilkes * * *.' Warren, supra, at 420, n. 1. It is also possible, however, that he was referring to the Parliamentary Test Act, 30 Car. 2, Stat. 2, c. 1 (1678), which had excluded Catholics as a group from serving in Parliament.

^69. Charles Warren, upon whose interpretation of these events petitioners rely, concluded that the Convention's decision to reject Gouverneur Morris' proposal and the more limited proposal of the Committee of Detail was an implicit adoption of Madison's position that the qualifications of the elected 'were fundamental articles in a Republican Govt. and ought to be fixed by the Constitution.' 2 Farrand 249—250. See Warren, supra, at 420—421. Certainly, Warren argued, '(s)uch action would seem to make it clear that the Convention did not intend to grant to a single branch of Congress * * * the right to establish any qualifications for its members, other than those qualifications established by the Constitution itself * * *. For certainly it did not intend that a single branch of Congress should possess a power which the Convention had expressly refused to vest in the whole Congress.' Id., at 421. See 1 J. Story, Commentaries on the Constitution of the United States § 625, at 445 (1873). Although Professor Chafee argued that congressional precedents do not support this construction, he nevertheless stated that forbidding any additions to the qualifications expressed in the Constitution was 'the soundest policy.' Z. Chafee, Free Speech in the United States 256 (1941).

^70. See 10 W. Holdsworth, A History of English Law 540—542 (1938).

^71. Holdsworth notes that in the first edition of Blackstone's Commentaries Blackstone enumerated various incapacities and h en concluded that 'subject to these standing restrictions and disqualifications, every subject of the realm is eligible (for membership in the House of Commons) of common right.' 1 W. Blackstone's Commentaries *176. Blackstone was called upon in Commons to defend Wilkes' exclusion and the passage was quoted against him. Blackstone retaliated by writing a pamphlet and making two additions to later editions of his Commentaries in an effort to justify the decision of Parliament. Holdsworth, supra, at 540—541.

^72. Appendix D to Brief for Respondents 52.

^73. Warren, supra, at 422, n. 1. Charles Warren buttressed his conclusion by noting that the Massachusetts Constitution of 1780 'contained affirmative qualifications for Representatives and exactly similar negative qualifications for Senators.' Ibid. Apparently, these provisions were not considered substantively different, for each house was empowered in identical language to 'judge of the elections, returns and qualifications of their own members, as pointed out in the constitution.' Mass.Const., pt. 2, c. I, § 2, Art. IV, 3 Thorpe 1897, and § 3, Art. X, 3 Thorpe 1899. (Emphasis added.) See Warren, supra, at 422—423, n. 1.

^74. In No. 52 of The Federalist, Madison stated:

'The qualifications of the elected, being less carefully and properly defined by the State constitutions, and being at the same time more susceptible of uniformity, have been very properly considered and regulated by the convention. (He then enumerated the qualifications for both representatives and Senators.) * * * Under these reasonable limitations, the door of this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession or religious faith.' The Federalist Papers 326 (Mentor ed. 1961).

^75. Respondents dismiss Madison's assertion that the 'qualifications of the elected, * * * being at the same time more susceptible of uniformity, have been very properly considered and regulated by the convention,' as nothing more than a refutation of the charge that the new national legislature would be free to establish additional 'standing incapacities.' However, this conclusion cannot be reconciled with the pre-Convention history on this question, the Convention debates themselves, and, in particular, the delegates' decision to require a two-thirds vote for expulsion.

^76. At the same convention, Robert Livingston, one of the new Constitution's most ardent supporters and one of the State's most substantial landowners, endorsed this same fundamental principle: 'The people are the best judges who ought to represent them. To dictate and control them, to tell them whom they shall not elect, is to abridge their natural rights.' 2 Elliot's Debates 292—293.

^77. Appendix D to Brief for Respondents 62.

^78. In 1797, during the 5th Congress, 1st Session, the House considered expelling Matthew Lyon, a Republican, for sedition. The vote to expel, however, was 49 to 45, and broke down largely along partisan lines. Althu gh Lyon's opponents, the Federalists, retained a majority in the 6th Congress, to which Lyon was reelected, and although there were political advantages to be gained from trying to prevent him from taking his seat, there was no effort made to exclude him. See Dionisopoulos, A Commentary on the Constitutional Issues in the Powell and Related Cases, 17 J.Pub.L. 103, 123—127 (1968).

^79. Another Maryland representative was unsuccessfully challenged in 1808 on grounds almost identical to those asserted in the challenge of McCreery. See 18 Annals of Cong. 1848—1849 (1808). In 1844, the Senate declined to exclude John M. Niles, who was accused of being mentally incompetent, after a special committee reported him competent. Cong. Globe, 28th Cong., 1st Sess., 564—565, 602 (1844). In 1856, the House rejected an attempt to exclude Samuel Marshall for violating an Illinois law prohibiting state judges from running for other offices. 1 Hinds § 415. That same year, the Senate refused to exclude Lyman Trum-bull for violating the same Illinois law. Ibid.

^80. Between 1862 and 1867, both the House and Senate resisted several attempts to exclude members-elect who were accused of being disloyal to the Union during the Civil War. See, id., §§ 448, 455, 458; Senate Election, Expulsion and Censure Cases, S.Doc.No.71, 87th Cong., 2d Sess., 21 (1962) (hereinafter cited as Senate Cases).

^81. That same year the Senate also excluded a supporter of the Confederacy. Senate Cases 40. The House excluded two others shortly thereafter, one for the same offense, and another for selling appointments to the Military and Naval Academies. See 1 Hinds §§ 459, 464; 2 Hinds § 1273.

^82. This departure from previous House construction of its power to exclude was emphasized by Congressman William P. Fessenden: '(T)he power which we have under the Constitution to judge of the qualifications of members of the body is not a mere arbitrary power, to be exerted according to the will of the individuals who may vote upon the subject. It ought to be a power subject to certain rules and founded upon certain principles. So it was up to a very late period, until the rebellion. The rule simply was, if a man came here and presented proper credentials from his State, to allow him to take the ordinary oath, which we all took, to support the Constitution, and be admitted, and if there was any objection to him to try that question afterward.' Cong. Globe, 40th Cong., 2d Sess., 685 (1868).

^83. For example, in 1870, the House refused to exclude a Texas Congressman accused of a variety of criminal acts, 1 Hinds § 465; but in 1882 and again in 1900 the House excluded a member-elect for practicing polygamy. 1 Hinds §§ 473, 477—480. Thereafter, it apparently did not consider excluding anyone until shortly after World War I, when it twice excluded Victor L. Berger, an avowed Socialist, for giving aid and comfort to the enemy. Significantly, the House committee investigating Berger concluded that he was ineligible under the express provision of § 3 of the Fourteenth Amendment. 6 C. Cannon, Precedents of the House of Representatives of the United States §§ 56—59 (1935) (hereinafter cited as Cannon). Berger, the last person to be excluded from the House prior to Powell, was later re-elected and finally admitted after his criminal conviction was reversed. 65 Cong.Rec. 7 (1923).

The House next considered the problem in 1925 when it contemplated excluding John W. Langley for his alleged misconduct. Langley resigned after losing a criminal appeal, and the House therefore never voted upon the question. 6 Cannon § 238. The most recent exclusion attempt prior to Powell's occurred in 1933, when the House refused to exclude a Representative from Minnesota who had been convicted of sending defamatory matter through the mail. See 77 Cong.Rec. 73—74, 131—139 (1933).

The Senate has not excluded anyone since 1929; in that year it refused to seat a member-elect because of improper campaign expenditures. 6 Cannon § 180. In 1947, a concerted effort was made to exclude Senator Theodore G. Bilbo of Mississippi for allegedly accp ting gifts from war contractors and illegally intimidating Negroes in Democratic primaries. See 93 Cong.Rec. 3—28 (1947). He died, however, before a decision was reached.

^84. During the debates over H.R.Res.No. 278, Congressman Celler, chairman of both the Select Committee and the Judiciary Committee, forcefully insisted that the Constitution 'unalterably fixes and defines' the qualifications for membership in the House and that any other construction of Art. I, § 5, would be 'improper and dangerous.' 113 Cong.Rec. 4998. See H.R.Rep.No. 484, 43d Cong., 1st Sess., 11—15 (1874) (views of minority); H.R.Rep.No. 85, 56th Cong., 1st Sess., 56—77 (1900) (views of minority). In the latter report, the dissenters argued: 'A small partisan majority might render the desire to arbitrarily exclude, by a majority vote, in order to more securely intrench itself in power, irresistible. Hence its exercise is controlled by legal rules. In case of expulsion, when the requisite two-thirds can be had, the motive for the exercise of arbitrary power no longer exists, as a two-thirds partisan majority is sufficient for every purpose. * * * The power of exclusion is a matter of law, to be exercised by a majority vote, in accordance with legal principles, and exists only where a member-elect lacks some of the qualifications required by the Constitution.' Id., at 76—77.

^85. 'Determining the basis for a congressional action is itself difficult; since a congressional action, unlike a reported judicial decision, contains no statement of the reasons for the disposition, one must fall back on the debates and the committee reports. If more than one issue is raised in the debates, one can never be sure on what basis the action was predicated. Unlike a court, which is presumed to be disinterested, in an exclusion case the concerned house is in effect a party to the controversy that it must adjudicate. Consequently, some members may be inclined to vote for exclusion though they strongly doubt its constitutionality.' 81 Harv.L.Rev., at 679.

^86. In fact, the Court has noted that it is an 'inadmissible suggestion' that action might be taken in disregard of a judicial determination. McPherson v. Blacker, 146 U.S. 1, 24, 13 S.Ct. 3, 6, 36 L.Ed.2d 869 (1892).

^1. U.S.Const., Art. I, § 2, cl. 2:

'No Person shall be a Representative who shall not have attained to the age of twenty five 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.'

^2. The Constitutional Convention had the occasion to consider several proposals for giving Congress discretion to shape its own qualifications for office and explicitly rejected them. James Madison led the opposition by arguing that such discretion would be

'an improper & dangerous power in the Legislature. The qualifications of electors and elected were fundamental articles in a Republican Govt. and ought to be fixed by the Constitution. If the Legislature could regulate those of either, it can by degrees subvert the Constitution.' 2 M. Farrand, Records of the Federal Convention of 1787, pp. 249—250 (1911). Alexander Hamilton echoed that same conclusion:

'The qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature.' The Federalist Papers, No. 60, p. 371 (Mentor ed. 1961).

And so, too, the early Congress of 1807 decided to seat Representative-elect William McCreery on the ground that its power to 'judge' was limited by the enumerated qualifications.

'The Committee of Elections considered the qualifications of members to have been unalterably determined by the Federal Convention, unless changed b an authority equal to that which framed the Constitution at first * * *. Congress, by the Federal Constitution, are not authorized to prescribe the qualifications of their own members, but they are authorized to judge of their qualifications; in doing so, however, they must be governed by the rules prescribed by the Federal Constitution, and by them only.' 17 Annals of Cong. 872 (1807) (remarks of Rep. Findley, Chairman of House Committee of Elections).

Constitutional scholars of two centuries have reaffirmed the principle that congressional power to 'judge' the qualifications of its members is limited to those enumerated in the Constitution. 1 J. Story, Commentaries on the Constitution 462 (5th ed. 1891); C. Warren, The Making of the Constitution 420—426 (1928). See also remarks by Emmanuel Celler, Chairman of the House Select Committee which inquired into the qualifications of Adam Clayton Powell, Jr., and which recommended seating him: 'The Constitution lays down three qualifications for one to enter Congress—age, inhabitancy, citizenship. Mr. Powell satisfies all three. The House cannot add to these qualifications.' 113 Cong.Rec. 4998.

^3. Baker v. Carr, 369 U.S. 186, 242, 82 S.Ct. 691, 723, 7 L.Ed.2d 663, n. 2 (Douglas, J., concurring.)

^4. The question whether Congress has authority under the Constitution to add to enumerated qualifications for office is itself a federal question within the particular expertise of this Court. Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 706. Where that authority has been exceeded, redress may be properly sought here. Marbury v. Madison, 1 Cranch (5 U.S.) 137, 2 L.Ed. 60. Congress itself suspected no less in deciding to exclude Rep. Powell:

'(C)ases may readily be postulated where the action of a House in excluding or expelling a Member may directly impinge upon rights under other provisions of the Constitution. In such cases, the unavailability of judicial review may be less certain. Suppose, for example, that a Member was excluded or expelled because of his religion or race, contrary to the equal protection clause, or for making an unpopular speech protected by the first amendment * * *. (E) xclusion of the member-elect on grounds other than age, citizenship, or inhabitancy could raise an equally serious constitutional issue.' H.R.Rep.No.27, 90th Cong., 1st Sess., 30 (1967).

See also 113 Cong.Rec. 4994.

^5. Case of Victor Berger, 6 C. Cannon, Precedents of the House of Representatives of the United States § 56 (1935).

^6. Id., at § 122.

^7. See, .e.g., Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235.

^8. 1 A. Hinds, Precedents of the House of Representatives of the United States § 481 (1907).

^9. 113 Cong.Rec. 4997.

^10. S.Doc. No. 71 on Senate Election, Expulsion and Censure Cases from 1789 to 1960, 87th Cong., 2d Sess., 140 (1962).

^11. Hearings on A Protest to the Seating of William Langer, before the Senate Committee on Privileges and Elections, 77th Cong., 1st Sess., 820 (Nov. 3, 18, 1941) (hereinafter Hearings).

^12. Hearings 821.

^13. Hearings 820.

^14. 87 Cong.Rec. 3—4 (1941).

^15. S.Rep.No.1010, 77th Cong., 2d Sess. (1942).

^16. It was alleged that he had conspired as Governor to have municipal and county bonds sold to a friend of his who made a profit of $300,000 on the purchase, and purportedly rebated as much as $56,000 to Langer himself. Hearings 822—823.

^17. At the retrial of his conviction for conspiring to interfere with the enforcement of federal law, he was said to have paid money to have a friend of his, Judge Wyman, be given control of the litigation, and to have 'meddled' with the jury. Hearings 20—42, 120—130.

^18. He was charged as a lawyer with having accepted $2,000 from the mother of a boy in prison on the promise that he would obtain his pardon, when he knew, in fact, that a pardon was out of the question. He was also said to have counseled a defendant-client of his to marry the prosecution's chief witness in order to prevent her from testifying against him. And finally, it was suggested that he once bought an insurance policy during trial from one of the jurors sittn g in judgment of his client. Hearings 820—830.

^19. 87 Cong.Rec. 3—4, 34, 460 (1941); 88 Cong.Rec. 822, 828, 1253, 2077, 2165, 2239, 2328, 2382, 2412, 2472, 2564, 2630, 2699, 2759, 2791, 2801, 2842, 2858, 2914, 2917, 2959, 2972, 2989, 3038, 3051, 3065, 5668 (1942).

^20. 88 Cong.Rec. 2401.

^21. Ibid.

^22. 88 Cong.Rec. 2474.

^23. Ibid.

^24. Ibid.

^25. 88 Cong.Rec. 2483.

^26. 88 Cong.Rec. 2484.

^27. Although the House excluded Adam Clayton Powell by over two-thirds vote, it was operating on the assumption that only a majority was needed. For the suggestion that the House could never have rallied the votes to exclude Powell on the basis of a two-thirds ground rule, see Note, 14 How.L.J. 162 (1968); Note, 42 N.Y.U.L.Rev. 716 (1967).

^28. 88 Cong.Rec. 2488.

^29. 88 Cong.Rec. 2490.

^30. 88 Cong.Rec. 2488. Senator Knox of Pennsylvania had defended Senator-elect Reed Smoot of Utah in 1903 against charges that he ought to be excluded because of his affiliation with a group (Mormons) that countenanced polygamy. S.Doc.No.71, 87th Cong., 2d Sess., 97.

^1. See e.g., United States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 202—204, 89 S.Ct. 361, 363—364, 21 L.Ed.2d 344; Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 178—179, 89 S.Ct. 347, 350—351, 21 L.Ed.2d 325.

^2. See Gojack v. United States, 384 U.S. 702, 707, 86 S.Ct. 1689, 1693, 16 L.Ed.2d 870, n. 4 ('Neither the House of Representatives nor its committees are continuing bodies'); McGrain v. Daugherty, 273 U.S. 135, 181, 47 S.Ct. 319, 331, 71 L.Ed. 580. Forty-one of the present members of the House were not members of the 90th Congress; and two of the named defendants in this action, Messrs. Moore and Curtis, are no longer members of the House of Representatives. Moreover, the officer-employees of the House, such as the Sergeant at Arms, are re-elected by each new Congress. See n. 15, infra.

^3. See also United States v. W. T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303; United States v. Aluminum Co. of America, 148 F.2d 416, 448. The Court has only recently concluded that there was no 'controversy' in Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113, because of 'the fact that it was most unlikely that the Congressman would again be a candidate for Congress.' Id., at 109, 89 S.Ct., at 960. It can hardly be maintained that the likelihood of the House of Representatives' again excluding Powell is any greater.

^4. See also United States v. W. T. Grant Co., 345 U.S. 629, 632—633, 73 S.Ct. 894, 897; Local 74, United Brotherhood of Carpenters & Joiners v. NLRB, 341 U.S. 707, 715, 71 S.Ct. 966, 970, 95 L.Ed. 1309; Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 43, 65 S.Ct. 11, 14, 89 L.Ed. 29; Hecht Co. v. Bowles, 321 U.S. 321, 327, 64 S.Ct. 587, 88 L.Ed. 754; United States v. Trans-Missouri Freight Assn., 166 U.S. 290, 307—310, 17 S.Ct. 540, 546—547, 41 L.Ed. 1007.

^5. With the exception of Gray, the 'continuing controversy' cases relied on by the petitioners were actions by the Government or its agencies to halt illegal conduct of the defendants, and, by example, of others engaged in similar conduct. See cases cited, supra, nn. 1, 3, 4. The principle that voluntary abandonment of an illegal practice will not make an action moot is especially, if not exclusively, applicable to such public law enforcement suits.

'Private parties may settle their controversies at any time, and rights which a plaintiff may have had at the time of the commencement of the action may terminate before judgment is obtained or while the case is on appeal, and in any such case the court, being informed of the facts, will proceed no further in the action. Here, however, there has been no extinguishment of the rights * * * of the public, the enforcement of which the government has endeavored to procure by a judgment of a court * * *. The defendants cannot foreclose those rights nor prevent the assertion thereof by the government as a substantial trustee for the public under the act of congress, by (voluntary cessation of the challenged conduct).' United States v. Trans-Missouri Freight Assn., 166 U.S., at 309, 17 S.Ct., at 546.

The considerations of public enforcement of a statutory or regulatory scheme which inhere in those cases are not present in this litigation.

^6. Certainly in every decision relied on by the petitioners the Court did not reject the mootness argument solely on the ground that the illegal practice had been voluntarily terminated. In each it proceeded to determine that there was in fact a continuing controversy.

^7. House Resolution No. 2 provided in pertinent part:

'(2) That as punishment Adam Clayton Powell be and he hereby is fined the sum of $25,000, said sum to be pai to the Clerk to be disposed of by him according to law. The Sergeant at Arms of the House is directed to deduct $1,150 per month from the salary otherwise due the said Adam Clayton Powell, and pay the same to said Clerk until said $25,000 fine is fully paid.

'(3) That as further punishment the seniority of the said Adam Clayton Powell in the House of Representatives commence as of the date he takes the oath as a Member of the 91st Congress.'

The petitioners' argument that the case is kept alive by Powell's loss of seniority, see ante, at 496, is founded on the mistaken assumption that the loss of seniority is attributable to the exclusion from the 90th Congress and that seniority would automatically be restored if that exclusion were declared unconstitutional. But the fact is that Powell was stripped of seniority by the action of the 91st Congress, action which is not involved in this case and which would not be affected by judicial review of the exclusion from the 90th Congress. Moreover, even if the conduct of the 91st Congress were challenged in this case, the Court would clearly have no power whatsoever to pass upon the propriety of such internal affairs of the House of Representatives.

^8. Article I, § 5, of the Constitution specifically empowers each House to 'punish its Members for disorderly Behaviour.'

^9. The salary claim is personal to Congressman Powell, and the other petitioners therefore clearly have no further interest in this lawsuit.

^10. The Philippines Senate was composed of 24 Senators, 22 of whom were elected, and two of whom were appointed by the Governor General. Alejandrino was one of the two appointees. See 271 U.S., at 531—532, 46 S.Ct., at 601.

^11. Under the Philippine Autonomy Act, 39 Stat. 545, this Court had jurisdiction to examine by writ of error the final judgments and decrees of the Supreme Court of the Philippine Islands in cases under the Constitution or statutes of the United States. A subsequent statute substituted the writ of certiorari. 39 Stat. 726.

^12. 'Section 18 (of the Autonomy Act) provides that the Senate and House respectively shall be the sole judges of the elections, returns and qualifications of their elective members, and each House may determine the rules of its proceedings, punish its members for disorderly behavior, and with the concurrence of two-thirds expel an elective member. The Senators and Representatives shall receive an annual compensation for their services to be ascertained by law and paid out of the treasury of the Philippine Islands. Senators and Representatives shall in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses and in going to and returning from the same; and for any speech or debate in either house they shall not be questioned in any other place.' 271 U.S., at 532, 46 S.Ct., at 601.

^13. The petitioners rely on the following passage from Bond v. Floyd, 385 U.S. 116, 128, 87 S.Ct. 339, 345, 17 L.Ed.2d 235, n. 4, as dispositive of their contention that the salary claim prevents this case from being moot:

'A question was raised in oral argument as to whether this case might not be moot since the session of the House which excluded

Bond was no longer in existence. The State has not pressed this argument, and it could not do so, because the State has stipulated that if Bond succeeds on this appeal he will receive back salary for the term from which he was excluded.'

I do not believe that this offhand dictum in Bond is determinative of the issue of mootness in this case. In the first place, as the Court in Bond noted, it was not there contended by any party that the case was moot. Moreover, contrary to the implication of the statement, the legislative term from which Bond was excluded had not ended at the time of the Court's decision. (The Court's decision was announced on December 5, 1966; Bond's term of office expired on December 31, 1966.) In any event, he had not been seated in a subsequent term, so the continuing controversy had not been rendered clearly moot by any action of the Georgia House, as it has here by the House of Representatives of the 91st Congress. No one suggested in Bond that the money claim was the only issue left in the case. Furthermore, the considerations which governed the Court's decision in Alejandrino were simply not present in Bond. Because of the State's stipulation, there was no doubt, as there is here, see infra, at 570-571, that the Court's decision would lead to effective relief with respect to Bond's salary claim. And finally, there was no suggestion that Bond had an alternative remedy, as Powell has here, see infra, at 571—572, by which he could obtain full relief without requiring the Court to decide novel and delicate constitutional issues.

^14. Alejandrino was the only petitioner in the case, and since he was an appointed Senator, it appears that there was no group of voters who remained without representation of their choice in the Senate during his suspension.

^15. Act of Oct. 1, 1890, § 6, 26 Stat. 646, 2 U.S.C. § 83.

^16. U.S.Const., Art. I, § 6; 2 U.S.C. § 47.

^17. 2 U.S.C. §§ 80, 78.

^18. 2 U.S.C. § 35.

^19. 2 U.S.C. § 34.

^20. 2 U.S.C. § 48.

^21. The respondents allege without contradiction that the Sergeant at Arms does not have sufficient funds to pay Congressman Powell's back salary claims. Separate appropriations for the salaries of Congressmen are made in each fiscal year, see, e.g., 80 Stat. 354, 81 Stat. 127, 82 Stat. 398, and, according to the respondents, 'it is the custom of the Sergeant to turn back to the Treasury all unexpended funds at the end of each fiscal year.' Thus, the only funds still held by the Sergeant are said to be those appropriated for the present fiscal year commencing July 1, 1968.

^22. 'The Court of Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress * * *.' 28 U.S.C. § 1491. The district courts have concurrent jurisdiction over such claims only in amounts less than $10,000. 28 U.S.C. § 1346.

^23. United States v. King, 395 U.S. 1, 89 S.Ct. 1501, 23 L.Ed.2d 52. The petitioners suggest that the inability of the Court of Claims to grant such relief might make any remedy in that court inadequate. But since Powell's only remaining interest in the case is to collect his salary, a money judgment in the Court of Claims would be just as good as, and probably better than, mandatory relief against the agents of the House. The petitioners also suggest that the Court of Claims would be unable to grant relief because of the pendency of Powell's claim in another court, 28 U.S.C. § 1500, but that would, of course, constitute no obstacle if, as I suggest, the Court should order this action dismissed on grounds of mootness.

^24. It is possible, for example, that the United States in such an action would not deny Powell's entitlement to the salary but would seek to offset that sum against the amounts which Powell was found by the House to have appropriated unlawfully from Government coffers to his own use.

^25. Relying on Bank of Marin v. England, 385 U.S. 99, 101, 87 S.Ct. 274, 276, 17 L.Ed.2d 197, the petitioners complain that it would impose undue hardship on Powell to force him to 'start all over again' now that he has come this far in the present suit. In view of the Court's remand of this case for further proceedings with respect to Powell's remedy, it is at least doubtful that remitting him to an action in the Court of Claims would entail much more cost and delay than will be involved in the present case. And the inconvenience to litigants of further delay or litigation has never been deemed to justify departure from the sound principle, rooted in the Constitution, that important issues of constitutional law should be decided only if necessary and in cases presenting concrete and living controversies.

14 F.3d 623 (1994)

[624] Dennis M. Black, Washington, DC, argued the cause, for appellants. With him on the brief was David M. Aufhauser, Washington, DC.

Charles Tiefer, Acting Gen. Counsel, U.S. House of Representatives, Washington, DC, argued the cause, and filed the brief, for appellees.

Edwin E. Huddleson, III, James P. Mercurio, Wayne H. Matelski, John H. Pickering, James Robertson, Amy Farr Robertson, Roderic Von Oesen Boggs, and Myles V. Lynk were on the brief, for amici curiae, American Civil Liberties Union of the National Capital Area, et al. Arthur Barry Spitzer, Washington, DC, entered an appearance.

Before: SILBERMAN and RANDOLPH, Circuit Judges, FRANK M. COFFIN,^[1] Senior Circuit Judge, United States Court of Appeals for the First Circuit.

Opinion for the Court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

A number of congressmen and individual voters appeal from the judgment of the district court rejecting their challenge to a House rule granting delegates from the territories and the District of Columbia the right to vote in the Committee of the Whole. We hold that the provision does not violate Article I of the Constitution and therefore affirm.

I.

Between 1900 and 1974, Congress created the offices of five delegates to the House of Representatives, representing Puerto Rico, Guam, the Virgin Islands, American Samoa, and the District of Columbia. The rules of the House — at least between 1900 and 1970 — permitted the delegates to debate, but did not allow them to vote in any setting. In 1970, those rules were changed, and the delegate from Puerto Rico was given the additional [625] right to vote in standing committees.^[2] On January 5, 1993, the House granted all five delegates the right to vote in the Committee of the Whole, a committee composed of all members of the House through which all public bills affecting revenue and spending proceed, and which shapes, to a very great extent, the final form of bills that pass the House. The new House Rule XII, cl. 2, provides that:

[i]n a Committee of the Whole House on the state of the Union, the Resident Commissioner to the United States from Puerto Rico and each Delegate to the House shall possess the same powers and privileges as Members of the House.

In addition, the House amended its Rule XXIII, to provide:

[w]henever a recorded vote on any question has been decided by a margin within which the votes cast by the Delegates and the Resident Commissioner have been decisive, the Committee of the Whole shall automatically rise and the Speaker shall put that question de novo without intervening debate or other business. Upon the announcement of the vote on that question, the Committee of the Whole shall resume its sitting without intervening motion.

House Rule XXIII, cl. 2(d).

Robert H. Michel, the House Minority Leader, and 11 other members of the House, filed suit against the Clerk of the House and the territorial delegates, seeking a declaration that the House rules were unconstitutional, and an injunction preventing the delegates from attempting to vote in the Committee of the Whole and the Clerk from tallying such votes.^[3] The complaint was subsequently amended to add three private voter plaintiffs: one represented by appellant Congressman Michel from Illinois, one by appellant Congressman Castle from Delaware, and one by appellant Congressman Thomas from Wyoming.

The district court denied the appellants' application for a preliminary injunction and dismissed the case. After disposing of a number of jurisdictional issues, the court determined that "for most practical purposes" the "Committee of the Whole is the House of Representatives," and that accordingly a rule that would permit delegates to vote in that committee without qualification, would "invest them with legislative power in violation of Article I of the Constitution." Michel v. Anderson, 817 F.Supp. 126, 141 (D.D.C.1993). The court concluded that the rules are constitutional, however, because the "revote" provision left Rule XII with "no effect, or only at most an unproven, remote, and speculative effect, as far as voting or the exercise of legislative power is concerned." 817 F.Supp. at 145. This appeal followed.^[4]

II.

Appellees and amici assert various jurisdictional defects in the case. Amici challenge the standing of the individual voters and also assert that the political question doctrine makes appellants' claims nonjusticiable. Ordinarily, we would not entertain an amicus' argument if not presented by a party, but as these questions go to our jurisdiction, we are obliged to consider them on our own and therefore welcome amici's presentation. Appellees argue that under our Circuit's remedial discretion doctrine, we lack jurisdiction to provide relief to the appellants.

Amici do not question the congressmen's standing to assert that their voting power has been diluted. Vander Jagt v. O'Neill, 699 F.2d 1166 (D.C.Cir.1982), cert. denied, 464 U.S. 823, 104 S.Ct. 91, 78 L.Ed.2d 98 (1983), establishes that congressmen asserting such a claim have suffered an Article III injury. See 699 F.2d at 1168-71 (holding that congressmen have standing to challenge method by which House committee [626] seats are allocated). Amici rely instead on the remedial discretion doctrine raised by appellees to blunt the congressmen's claim. But the remedial discretion doctrine, if it applies, bars the congressmen's suit, not the individual voters', see infra, so, understandably, amici attack the private voters' standing. As we understand amici's argument, private voters who are in districts represented by the appellant congressmen lack a distinct or palpable injury because their supposed injury — the dilution of the voting power of their congressmen — is suffered by every American voter who resides in any state. As such, the voters are raising only a generalized, abstract grievance which, as has been said repeatedly, is not an injury for Article III purposes. See Frothingham v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078 (1923); Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 227, 94 S.Ct. 2925, 2935, 41 L.Ed.2d 706 (1974).

That an injury is widespread, however, does not mean that it cannot form the basis for a case in federal court so long as each person can be said to have suffered a distinct and concrete harm. See Public Citizen v. United States Dep't of Justice, 491 U.S. 440, 449-50, 109 S.Ct. 2558, 2564, 105 L.Ed.2d 377 (1989) ("The fact that other citizens or groups of citizens might make the same complaint ... does not lessen appellants' asserted injury...."). The Supreme Court has repeatedly held that voters have standing to challenge practices that are claimed to dilute their vote, such as being placed in a voting district that is significantly more populous than others. See Wesberry v. Sanders, 376 U.S. 1, 5-6, 84 S.Ct. 526, 529, 11 L.Ed.2d 481 (1964); Franklin v. Massachusetts, ___ U.S. ___, ___, 112 S.Ct. 2767, 2776-77, 120 L.Ed.2d 636 (1992). To be sure, in this case the alleged dilution occurs after the voters' representative is elected, and so amici argue that the voters' claim is "derivative." But we do not understand why that should be of significance. It could not be argued seriously that voters would not have an injury if their congressman was not permitted to vote at all on the House floor.

That all voters in the states suffer this injury, along with the appellants, does not make it an "abstract" one. Suppose, for sake of analysis, the House were to prevent all congressmen from the State of Georgia from voting in the House. It is obvious that Georgia voters would have suffered an injury. The same would be so if every state but Georgia were given an extra vote in the House. In the case at bar, the voters in every state are in the same legal position as Georgia voters in the hypotheticals. The difference is one of degree rather than kind. As a practical matter, it is not surprising that only voters in the plaintiff congressmen's districts have appeared as appellants. Amongst all voters, they may have the greatest political incentive to sue.

Amici are correct in contending that the degree of voter dilution in this case is theoretically the same no matter in which state a voter resides. But that would be equally true if the House purported to add as members the mayors of the 100 largest cities. All voters (except the mayors) in congressional districts would have their vote diluted and thus any of those voters could claim an injury. If, as has been repeatedly held, voters have standing to raise a vote-dilution claim based on the size of their districts — e.g., that their district contains 548,000 people while the neighboring district contains "only" 535,000 — it is difficult to understand why voters would not have standing to raise a claim that their vote was diluted because previously they had a right to elect a representative who cast one of 435 votes, whereas now their vote elects a representative whose vote is worth only one in 440.

Amici's alternative jurisdictional argument is that the case raises a "political question" and is thus nonjusticiable. Such a question is nonjusticiable when there is "a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it...." Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962). It is argued that Article I, § 5 of the Constitution, "Each House may determine the Rules of its Proceedings, ..." bestows on the House and only the House the authority to decide whether delegates may vote in the Committee [627] of the Whole. Amici point to Nixon v. United States, decided last term, in which the Supreme Court held that the constitutional grant to the Senate of the "sole power to try impeachments" rendered nonjusticiable the question of whether the Senate could delegate to a committee of senators the function of gathering evidence and hearing testimony. See ___ U.S. ___, ___, 113 S.Ct. 732, 739-40, 122 L.Ed.2d 1 (1993).

Earlier, however, the Court had held that despite the language in Article I, § 5, "Each House shall be the Judge of the ... Qualifications of its own Members ...," the House could not refuse to seat Adam Clayton Powell, Jr. because another provision, Article I, § 2, set forth the qualifications of membership and the House could not add to those qualifications. See Powell v. McCormack, 395 U.S. 486, 550, 89 S.Ct. 1944, 1979, 23 L.Ed.2d 491 (1969). In Nixon, Powell was both distinguished and reaffirmed. The Court explained:

Our conclusion in Powell was based on the fixed meaning of "[q]ualifications" set forth in Art. I, § 2. The claim by the House that its power to "be the Judge of the Elections, Returns and Qualifications of its own Members" was a textual commitment of unreviewable authority was defeated by the existence of this separate provision specifying the only qualifications which may be imposed for House membership. The decision as to whether a member satisfied these qualifications was placed with the House, but the decision as to what these qualifications consisted of was not.

In the case before us, there is no separate provision of the Constitution which could be defeated by allowing the Senate final authority to determine the meaning of the word "try" in the Impeachment Trial Clause. We agree with Nixon that courts possess power to review either legislative or executive action that transgresses identifiable textual limits. As we have made clear, "whether the action of [either the Legislative or Executive Branch] exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution." Baker v. Carr, supra, 369 U.S., at 211, 82 S.Ct. at 706....

Nixon, ___ U.S. at ___, 113 S.Ct. at 740.

Appellants analogize this case to Powell and distinguish Nixon, pointing to constitutional text which limits the rulemaking grant: "The House of Representatives shall be composed of Members chosen every Second Year by the People of the Several States...." Art. I, § 2. As House counsel concedes, were the House to create members not "chosen every second year by the People of the several states," and bestow upon them full voting privileges, such an action, whether or not pursuant to House rules, would be blatantly unconstitutional. Therefore, the question presented in this case — whether granting delegates the power to vote in the Committee of the Whole bestows a status equivalent to membership on the delegates — cannot be thought to have been delegated by the Constitution to the House to decide. There are limitations to the House's rulemaking power, and Art. I, § 2 is such a limit.

Appellees (in effect, the House of Representatives) bypass standing and justiciability and rely instead on our line of cases which elaborated the "remedial discretion doctrine." That concept precludes this court from granting equitable relief — either declaratory or injunctive — if it interferes with the internal operation of the House or Senate. Most recently, in Humphrey v. Baker, 848 F.2d 211 (D.C.Cir.), cert. denied, 488 U.S. 966, 109 S.Ct. 491, 102 L.Ed.2d 528 (1988), a suit brought by a number of congressmen challenging the constitutionality of the Federal Salary Act of 1967 because it allegedly deprived them of their right to vote on legislation, we explained that "[u]nder the doctrine of equitable discretion, the availability of an internally available remedy to Members of Congress means that it would be an abuse of discretion for the judiciary to entertain the action." Id. at 214.

As was true in Humphrey, Congressman Michel and his colleagues could just as easily seek relief from their fellow House members. Appellants, therefore, would have us narrow Humphrey's categorical language to conform to earlier formulations of the [628] doctrine that suggest that it is a rule of discretion whose primary focus is on the intrusiveness vel non of the remedy sought. See, e.g., Riegle v. Federal Open Market Comm., 656 F.2d 873, 881 (D.C.Cir.), cert. denied, 454 U.S. 1082, 102 S.Ct. 636, 70 L.Ed.2d 616 (1981); Vander Jagt v. O'Neill, 699 F.2d 1166, 1176-77 (D.C.Cir.1982), cert. denied, 464 U.S. 823, 104 S.Ct. 91, 78 L.Ed.2d 98 (1983). They claim that here we need not concern ourselves with an intrusive remedy or subsequent congressional compliance with our decision, because all that is needed is a declaration that the House rule is unconstitutional, which would restore the status quo ante. It appears to us, however, that it is unnecessary to struggle with the doctrine since, however construed, it has no applicability to private voters. See Gregg v. Barrett, 771 F.2d 539, 546 (1985).^[5] Appellees suggest that to permit a private voter to bring an action challenging a House practice, which a House member could not, results in an undermining of the remedial discretion doctrine. That seems something of a bootstrap argument since the doctrine — a prudential self-imposed limitation on our remedial discretion — is premised on a congressman's ability to take care of his own interests by persuading his colleagues, and a private voter lacks that capacity. The remedial discretion doctrine, therefore, cannot be employed to bar a private citizen's claim over which we have jurisdiction.

III.

Turning to the merits, we first consider whether the rule is contrary to the legislation which created the delegates. The parties agree that the office of a delegate representing a territory (or the District of Columbia) could not be created other than through legislation, which, of course, requires the concurrence of the Senate and normally the President. The offices of each of the five delegates were created by statute, see 48 U.S.C. § 891 (1988) (Puerto Rico); 48 U.S.C. § 1711 (1988) (Guam and the Virgin Islands); 48 U.S.C. § 1731 (1988) (American Samoa); 2 U.S.C. § 25a (1988) (District of Columbia), and the delegates are paid, and their offices staffed, out of the public treasury. See, e.g., 48 U.S.C. §§ 1715, 1735 (1988). If, as appellants claim, these offices were created on the condition that the delegates would not be permitted to vote in the Committee of the Whole, then that condition would trump any authority of the House to change its rules unilaterally to grant that power. A statute, enacted into law by bicameral passage and presidential approval (or upon an override of a presidential veto), cannot be amended by one chamber unilaterally. INS v. Chadha, 462 U.S. 919, 952, 103 S.Ct. 2764, 2784-85, 77 L.Ed.2d 317 (1983). For this reason, appellees concede that if the statutes creating the delegate offices specifically provided that the delegates would not vote in the Committee of the Whole, the House's rule providing that vote would be invalid.

Appellants' argument that the legislation precludes the rule is not insubstantial but, at bottom, it is dependent on one remark by then-Congressman Foley during the debate over the extension to the Resident Commissioner from Puerto Rico of the right to vote in standing committees. With the exception of the statute creating the office of the delegate from the District of Columbia, the acts creating the other delegates all tie explicitly those delegates' privileges to those of the Resident Commissioner for Puerto Rico. The legislation creating the delegates from Guam and the Virgin Islands specifies that they "shall be entitled to whatever privileges and immunities are, or hereinafter may be, granted to the Resident Commissioner for Puerto Rico: Provided, That the right to vote in committee shall be as provided by the [629] Rules of the House of Representatives." 48 U.S.C. § 1715 (1988). The delegate from American Samoa, in turn, is granted "whatever privileges and immunities that are, or hereinafter may be, granted to the nonvoting Delegate from the Territory of Guam." 48 U.S.C. § 1735 (1988).

Although the statute creating the Office of the Delegate from the District of Columbia in 1970 did not specifically refer to the powers of the Puerto Rican delegate and provided that the delegate shall have a seat "with the right of debate, but not of voting," see Pub.L. 91-405, § 202, 84 Stat. 848 (1970), codified at 2 U.S.C. § 25a (1988), it is not argued that the District's delegate was intended any less or more authority than that granted the other delegates, so it is undisputed that Congress also authorized the District delegate to vote "in committee."

The key question, then, is the scope of the powers to be exercised in the House by the Resident Commissioner from Puerto Rico. The office of Resident Commissioner was established by an Act of Congress in 1900, see Act of Apr. 12, 1900, ch. 191, 31 Stat. 86 (Apr. 12, 1900), but the Act is entirely silent as to the Commissioner's function and privileges. See 48 U.S.C. § 891 (1988). Those privileges were clarified somewhat when Congress enacted the Legislative Reorganization Act of 1970. That Act, passed by both Chambers and signed into law by the President, adopted, inter alia, certain rules for the two Houses. One such provision specified that the Commissioner "shall be elected to serve on standing committees in the same manner as Members of the House and shall possess in such committees the same powers and privileges as the other Members." Pub.L. No. 91-510, § 129(b), 84 Stat. 1161. Thus, the rule enacted by statute provided that the commissioner would vote in the standing committees. Appellants argue that under the principle of inclusio unius est exclusio alterius the commissioner was not authorized to vote in the Committee of the Whole. The question is more complicated, however, because of section 101 of the Act, which specifies:

The following sections of this title are enacted by the Congress —

(2) insofar as applicable to the House of Representatives, as an exercise of the rulemaking power of the House of Representatives, subject to and with full recognition of the power of the House of Representatives to enact or change any rule of the House at any time in its exercise of its constitutional right to determine the rules of its proceedings.

Pub.L. No. 91-510, § 101, 84 Stat. 1143 (1970).

While it is fair to conclude that in 1970 Congress did not contemplate that the delegates would vote in the Committee of the Whole, section 101 of the Act, on its face, appears to delegate to the House the power to alter that situation by rule. Appellants claim that could not be so, however, because the Congress, in 1970, did not believe it would be constitutional for the House to provide, by rule, that the delegate should vote in the Committee of the Whole. They rely on legislative history. Apparently in response to a prearranged question from Congressman Sisk, who, troubled by the constitutionality of the provision granting the commissioner (and by statutory implication now, the other delegates) the vote in the standing committees, asked whether section 129 could be construed to grant such a vote in the Committee of the Whole as well, then-Congressman Foley responded:

Now it is very clear ... that a constitutional amendment would be required to give the Resident Commissioner a vote in the Committee of the Whole or the full House.... The point is that the constitutional issue does not touch preliminary advisory votes which is what standing committees votes are, but only the votes which are cast in the Committee of the Whole or the full House. These votes can be cast only by Members of Congress.

116 CONG.REC. 31,849 (1970).

If it could be said that the whole House meant section 101 to be limited by that constitutional restriction, appellants would have a compelling argument. But we do not see how we can ascribe Congressman Foley's views to the whole House. Nothing in the legislation reflects that understanding. As we have recently noted, we have an obligation [630] to construe statutes to avoid serious constitutional questions, see Association of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 910 (D.C.Cir.1993), but we think appellants' claimed interpretation relies too heavily on the remarks of only one congressman (fated, albeit, to be the Speaker) to defeat the plain language of section 101. Moreover, since appellants' claimed construction of the statute depends on the 1970 Congress entertaining the same view of the Constitution appellants assert in this case, by relying on that proposition we would come very close to endorsing that view of the Constitution — which undermines the purpose of the rule of statutory construction. We have, therefore, no alternative but to pass on to the constitutional issue.

IV.

The question before us is shaped by the parties' arguments and, even more, their concessions. The appellants do not challenge the constitutionality of the practice of permitting delegates to vote on standing committees, although, recognizing the difficulty in drawing a constitutional line between the Committee of the Whole and the standing committees, they do not concede the constitutionality of the prior House rule permitting delegates to vote in the latter. The appellees, for their part, forthrightly concede that the House could not permit persons other than the traditional territorial delegates to perform the role currently played by the delegates. It would, thus, not be open to the House to authorize by rule, say, the mayors of the 100 largest cities to serve and vote on House committees. Nor could the House, appellees agree, deprive any member of the right to vote in the Committee of the Whole (or in a standing committee). Finally, despite the House's reliance on the revote mechanism to reduce the impact of the rule permitting delegates to vote in the Committee of the Whole, appellees concede that it would be unconstitutional to permit anyone but members of the House to vote in the full House under any circumstances. In other words, delegates could not be authorized to vote in proceedings of the full House subject to a revote. So the issue is narrowed to the question: May the House authorize territorial delegates to vote in the House's committees, particularly the Committee of the Whole?

The district court, it will be recalled, thought the House rule would have violated Article I if it had not been qualified by the revote provision, because it would have "invested the delegates with legislative power." Appellants reiterate that proposition, but claim that since the qualification is not complete — some voting power is passed to the delegates notwithstanding the revote provision — Rule XII violates Article I. As amici point out, however, and appellants ultimately concede, Article I, § 1, grants the legislative powers to the Congress, which in turn consists of the Senate and House of Representatives. No one congressman or senator exercises Article I "legislative power." Therefore, it is not meaningful to claim that the delegates are improperly exercising Article I legislative authority. The crucial constitutional language implicated by appellants' claim (which appellants point out) is, instead, Article I, § 2: "The House of Representatives shall be composed of Members...." That language precludes the House from bestowing the characteristics of membership on someone other than those "chosen every second Year by the People of the several States."

But what are the aspects of membership other than the ability to contribute to a quorum of members under Article I, § 5, to vote in the full House, and to be recorded as one of the Yeas or Nays if one-fifth of the members so desire? The Constitution, it must be said, is silent on what other characteristics of membership are reserved to members. Although it seems obvious that the Framers contemplated the creation of legislative committees — the Constitutional Convention itself, see SUPPLEMENT TO MAX FARRAND'S THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 370-71 (James H. Hutson, ed., 1987) (index) (listing the numerous committees used by convention during drafting of Constitution), as well as the Continental Congress, see JENNINGS B. SANDERS, EVOLUTION OF EXECUTIVE DEPARTMENTS OF THE CONTINENTAL CONGRESS: 1774-1789, at 4, 6-8, 41-43 (1935), utilized [631] committees frequently — the Constitution does not mention such committees.

Accordingly, appellees look to the practice of the early congresses relating to territorial delegates as an interpretative aid. Although the actions of the early congresses are not a perfect indicator of the Framers' intent, those actions provide some indication of the views held by the Framers, given the propinquity of the congresses and the framing and the presence of a number of Framers in those congresses. Cf. Marsh v. Chambers, 463 U.S. 783, 788-791, 103 S.Ct. 3330, 3334-3336, 77 L.Ed.2d 1019 (1983). The first territorial delegate, representing the Northwest Territories, was created by statute during the first Congress. See 1 Stat. 50, 52 (1789). William Henry Harrison, who occupied that office, was granted considerable privileges in Congress, including the power of making motions, see 6 ANNALS OF CONGRESS 197-98 (1799), and of serving as chairman of a committee. See 6 ANNALS OF CONGRESS 527 (1800). "Harrison's Committee on Public Lands not only procured the passage of the Land Act of 1800, but also served as a clearing house for all petitions and special measures relating to lands in the Northwest." DOROTHY BURNE GOEBEL, WILLIAM HENRY HARRISON: A POLITICAL BIOGRAPHY 46 (1974).

The practice of permitting delegates to serve on and to chair standing committees continued into the nineteenth century. See II ASHER C. HINDS, HINDS' PRECEDENTS OF THE HOUSE OF REPRESENTATIVES § 1299, at 865 (1907). Those delegates may even have been granted the right to vote in the standing committees. According to a report on the qualifications of David Levy to serve as Delegate from Florida, prepared by the House Committee on Elections in 1841,

[w]ith the single exception of voting, the Delegate enjoys every other privilege and exercises every other right of a Representative. He can act as a member of a standing or special committee and vote on the business before said committees, and he may thus exercise an important influence on those initiatory proceedings by which business is prepared for the action of the House.

H.R.REP. No. 10, 27th Cong., 1st Sess., at 5 (1841). This report, although indicative of the House's practice around 1840, admittedly provides no direct documentary proof that delegates were permitted to vote in the standing committees in the first congresses as well. Be that as it may, the territorial delegates were certainly accorded a unique status by the first congresses. At the earliest times, Congress viewed the territorial delegates as occupying a unique middle position between that of a full representative and that of a private citizen who presumably could not serve on or chair House committees.

The territorial delegates, representing those persons in geographical areas not admitted as states, then, always have been perceived as would-be congressmen who could be authorized to take part in the internal affairs of the House without being thought to encroach on the privileges of membership.

Appellants, not disputing the main line of appellees' historical presentation, but without conceding the legitimacy of the practice, assert that the rule in question is a qualitatively different matter. Whatever the legitimacy of permitting delegates' participation — even full participation — in the work of standing committees, the Committee of the Whole is so close to the full House that permitting the delegates to vote there is functionally equivalent to granting them membership in the House.

Appellants claim, for instance, that provisions removed by the committee cannot be resurrected on the floor of the House, and that by longstanding practice, enforced by rules of procedure attached to successive bills, the House cannot amend bills that reach the floor but rather must vote up or down on the bills in toto.^[6] As appellees point [632] out, appellants' description of the power of the committee is somewhat exaggerated, but, in any event, appellants' argument, even if true, proves too much. Any number of procedures sharply limit the range of options among which the House can choose when bills reach the floor. The House rules could give any standing committee, as it does conference committees, the authority to put bills to the House floor without the possibility of amendment. Indeed, under the "fast track" legislation, see 19 U.S.C. § 2903 (1988 & Supp.1991), a procedural device passed by each House as an exercise of rulemaking power, the President may submit various treaties to the two Houses for ratification on a take-it-or-leave-it basis. That device surely does not make the President the functional equivalent of the full House. In any event, whatever authority the Committee of the Whole exercises, it does so only at the sufferance of the full House which can alter the Committee of the Whole's function at any time.

Nevertheless, it would blink reality to deny the close operational connection between the Committee of the Whole and the full House. The House itself recognized how perilously close the rule change came to granting delegates a vote in the House. That is why the House sought to ameliorate the impact of the change through the revote provision. That has led the parties to dispute vigorously the degree to which, notwithstanding the revote provision, the granting of a vote to the delegates in the Committee causes a change in the dynamics of the behavior of the House. Appellees are put in the awkward position of claiming that the revote provision causes the grant of voting authority to the delegates to be only symbolic. It is not necessary to explore and analyze all the scenarios about which the parties conjecture.^[7] Suffice it to say that we think that insofar as the rule change bestowed additional authority on the delegates, that additional authority is largely symbolic and is not significantly greater than that which they enjoyed serving and voting on the standing committees. Since we do not believe that the ancient practice of delegates serving on standing committees of the House can be successfully challenged as bestowing "membership" on the delegates, we do not think this minor addition to the office of delegates has constitutional significance.

* * * * * *

Accordingly, the district court's judgment is affirmed.

So ordered.

[1] Sitting by designation pursuant to 28 U.S.C. § 294(d) (1988).

[2] By statute and practice, the privileges of the other delegates are tied to those enjoyed by the Puerto Rican Resident Commissioner. See infra.

[3] For the sake of convenience, we will occasionally refer to the appellees as "the House." This is not, however, intended to imply that a suit naming the House itself as a defendant would be proper.

[4] The parties here include a number of amici curiae in support of appellee Eleanor Holmes Norton, the delegate from the District of Columbia.

[5] Appellees seek to distinguish Gregg on the ground that the private voters there had suffered an injury separate from that suffered by the congressmen. We are unpersuaded by that distinction. Gregg involved a challenge to the allegedly inaccurate procedures used in compiling the Congressional Record. The congressional plaintiffs claimed an injury to their alleged First Amendment right to have their views transmitted accurately, while the voters asserted the corollary right to receive those views accurately. See 771 F.2d at 540. Here, the congressmen allege that their voting power in Congress has been diluted, whereas the voters complain of a dilution in their representational rights. That injury is at least as distinct from the congressmen's as the harm alleged in Gregg.

[6] Appellants concede that members may introduce in the full House a motion to recommit a bill to the standing committees for amendment, but understandably argue that the existence of this time-consuming and cumbersome procedure does little in practice to cure the influence of the Committee of the Whole's proceedings on final bills. Alternatively, appellant congressmen argue that they should not be compelled to surmount such difficult hurdles in order to enforce their right not to have their vote diluted by the delegates' participation.

[7] Under one such scenario advanced by appellants, the five delegates would each agree to trade their votes on a certain bill with three members in exchange for the members' support of the delegates' pet bill. That pet bill, then, might pass by a margin of 15 votes — too great a number to trigger the revote mechanism but nevertheless a margin that might not have existed were it not for the ability of the delegates to trade their newly granted votes in the Committee. The implicit underlying assumption is that a member would be willing to trade his vote for a delegate's at par, even though in a close vote (presumably the only vote where such a trade would matter) the delegate's own vote could not have a decisive effect because of the revote mechanism. Of course, the membership of delegates on standing committees already endowed them with considerable vote-trading possibilities.

Appellants raise as a second scenario the possibility that by casting a decisive vote, a delegate could "force" a revote, and that the "power" to force a second vote might itself be sufficient to alter the result. Appellants point to a number of instances (unrelated to delegate voting) in which two successive votes were taken on a bill, with the result of the second differing from that of the first. See 139 CONG.REC. 4,184 (daily ed. June 29, 1993); 139 CONG.REC. 4,788 (daily ed. July 20, 1993). The power to force a second vote is not, however, all that different from the power to resubmit a bill for consideration by the House, a power that the delegates historically have enjoyed.

Finally, appellants point out that House Rule XXIII only provides for a revote on recorded votes, and that the delegates might cast decisive votes when such votes are unrecorded. While this is theoretically true, it is unclear how often, if ever, an unrecorded vote on a controversial matter would be decisive, given that it takes only 25 members to force a recorded vote. See House Rule XXIII, cl. 2(b).

514 U.S. 779 (1995)

CERTIORARI TO THE SUPREME COURT OF ARKANSAS

[781] [781] Stevens, J., delivered the opinion of the Court, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Kennedy, J., filed a concurring opinion, post, p. 838. Thomas, J.,filed a dissenting opinion, in which Rehnquist, C. J., and O'Connor and Scalia, JJ., joined, post, p. 845.

J. Winston Bryant, Attorney General of Arkansas, pro se, argued the cause for petitioner in No. 93-1828. With him on the briefs were Jeffrey A. Bell, Deputy Attorney General, Ann Purvis and David R. Raupp, Assistant Attorneys General, Griffin B. Bell, Paul J. Larkin, Jr., Richard F. Hatfield, and Cleta Deatherage Mitchell. John G. Kester argued the cause for petitioners in No. 93-1456. With him on the briefs was H. William Allen. Robert H. Bork, Theodore B. Olson, and Thomas G. Hungar filed briefs for Representative Jay Dickey et al., and Edward W. Warren filed briefs for the Republican Party of Arkansas et al., as respondents under this Court's Rule 12.4.

Louis R. Cohen argued the cause for respondents in both cases. With him on the brief for respondents in No. 93-1828 were W. Hardy Callcott, Peter B. Hutt II, and Elizabeth J. Robben. Henry Maurice Mitchell, Sherry P. Bartley, Rex E. Lee, Carter G. Phillips, Ronald S. Flagg, Mark D. Hopson, Joseph R. Guerra, and Jeffrey T. Green filed a brief for respondent Thornton in No. 93-1456.

Solicitor General Days argued the cause for the United States as amicus curiae urging affirmance. With him on [782] the brief were Assistant Attorneys General Dellinger and Hunger, Deputy Solicitor General Bender, Paul R. Q. Wolfson, and Douglas N. Letter.^[2]

Justice Stevens, delivered the opinion of the Court.

The Constitution sets forth qualifications for membership in the Congress of the United States. Article I, § 2, cl. 2, which applies to the House of Representatives, provides:

[783] "No Person shall be a Representative who shall not have attained to the Age of twenty five 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."

Article I, § 3, cl. 3, which applies to the Senate, similarly provides:

"No Person shall be a Senator who shall not have attained to the Age of thirty 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."

Today's cases present a challenge to an amendment to the Arkansas State Constitution that prohibits the name of an otherwise-eligible candidate for Congress from appearing on the general election ballot if that candidate has already served three terms in the House of Representatives or two terms in the Senate. The Arkansas Supreme Court held that the amendment violates the Federal Constitution. We agree with that holding. Such a state-imposed restriction is contrary to the "fundamental principle of our representative democracy," embodied in the Constitution, that "the people should choose whom they please to govern them." Powell v. McCormack, 395 U. S. 486, 547 (1969) (internal quotation marks omitted). Allowing individual States to adopt their own qualifications for congressional service would be inconsistent with the Framers' vision of a uniform National Legislature representing the people of the United States. If the qualifications set forth in the text of the Constitution are to be changed, that text must be amended.

I

At the general election on November 3, 1992, the voters of Arkansas adopted Amendment 73 to their State Constitution. Proposed as a "Term Limitation Amendment," its preamble stated:

[784] "The people of Arkansas find and declare that elected officials who remain in office too long become preoccupied with reelection and ignore their duties as representatives of the people. Entrenched incumbency has reduced voter participation and has led to an electoral system that is less free, less competitive, and less representative than the system established by the Founding Fathers. Therefore, the people of Arkansas, exercising their reserved powers, herein limit the terms of elected officials."

The limitations in Amendment 73 apply to three categories of elected officials. Section 1 provides that no elected official in the executive branch of the state government may serve more than two 4-year terms. Section 2 applies to the legislative branch of the state government; it provides that no member of the Arkansas House of Representatives may serve more than three 2-year terms and no member of the Arkansas Senate may serve more than two 4-year terms. Section 3, the provision at issue in these cases, applies to the Arkansas Congressional Delegation. It provides:

"(a) Any person having been elected to three or more terms as a member of the United States House of Representatives from Arkansas shall not be certified as a candidate and shall not be eligible to have his/her name placed on the ballot for election to the United States House of Representatives from Arkansas.

"(b) Any person having been elected to two or more terms as a member of the United States Senate from Arkansas shall not be certified as a candidate and shall not be eligible to have his/her name placed on the ballot for election to the United States Senate from Arkansas."

Amendment 73 states that it is self-executing and shall apply to all persons seeking election after January 1, 1993.

On November 13, 1992, respondent Bobbie Hill, on behalf of herself, similarly situated Arkansas "citizens, residents, [785] taxpayers and registered voters," and the League of Women Voters of Arkansas, filed a complaint in the Circuit Court for Pulaski County, Arkansas, seeking a declaratory judgment that § 3 of Amendment 73 is "unconstitutional and void." Her complaint named as defendants then-Governor Clinton, other state officers, the Republican Party of Arkansas, and the Democratic Party of Arkansas. The State of Arkansas, through its Attorney General, petitioner Winston Bryant, intervened as a party defendant in support of the amendment. Several proponents of the amendment also intervened, including petitioner U. S. Term Limits, Inc.

On cross-motions for summary judgment, the Circuit Court held that § 3 of Amendment 73 violated Article I of the Federal Constitution.^[3]

With respect to that holding, in a 5-to-2 decision, the Arkansas Supreme Court affirmed. U. S. Term Limits, Inc. v. Hill, 316 Ark. 251, 872 S. W. 2d 349, 351 (1994). Writing for a plurality of three justices, Justice Robert L. Brown concluded that the congressional restrictions in Amendment 73 are unconstitutional because the States have no authority "to change, add to, or diminish" the requirements for congressional service enumerated in the Qualifications Clauses. Id. , at 265, 872 S. W. 2d, at 356. He noted:

"If there is one watchword for representation of the various states in Congress, it is uniformity. Federal legislators speak to national issues that affect the citizens of every state. . . . The uniformity in qualifications mandated [786] in Article 1 provides the tenor and the fabric for representation in the Congress. Piecemeal restrictions by State would fly in the face of that order." Ibid.

Justice Brown's plurality opinion also rejected the argument that Amendment 73 is "merely a ballot access amendment," concluding that "[t]he intent and the effect of Amendment 73 are to disqualify congressional incumbents from further service." Id. , at 265-266, 872 S. W. 2d, at 356-357. Justice Brown considered the possibilities that an excluded candidate might run for Congress as a write-in candidate or be appointed to fill a vacancy to be "glimmers of opportunity. . . [that] are faint indeed—so faint in our judgment that they cannot salvage Amendment 73 from constitutional attack." Id. , at 266, 872 S. W. 2d, at 357. In separate opinions, Justice Dudley and Justice Gerald P. Brown agreed that Amendment 73 violates the Federal Constitution.

Two justices dissented from the federal constitutional holding. Justice Hays started from "the premise that all political authority resides in the people, limited only by those provisions of the federal or state constitutions specifically to the contrary." Id., at 281, 872 S. W. 2d, at 367. Because his examination of the text and history of the Qualifications Clauses convinced him that the Constitution contains no express or implicit restriction on the States' ability to impose additional qualifications on candidates for Congress, Justice Hays concluded that § 3 is constitutional. Special Chief Justice Cracraft, drawing a distinction between a measure that "impose[s] an absolute bar on incumbent succession" and a measure that "merely makes it more difficult for an incumbent to be elected," id. , at 284, 872 S. W. 2d, at 368, concluded that Amendment 73 does not even implicate the Qualifications Clauses, and instead is merely a permissible ballot access restriction.

The State of Arkansas, by its Attorney General, and the intervenors petitioned for writs of certiorari. Because of the importance of the issues, we granted both petitions and [787] consolidated the cases for argument. See 512 U. S. 1218 (1994). We now affirm.

II

As the opinions of the Arkansas Supreme Court suggest, the constitutionality of Amendment 73 depends critically on the resolution of two distinct issues. The first is whether the Constitution forbids States to add to or alter the qualifications specifically enumerated in the Constitution. The second is, if the Constitution does so forbid, whether the fact that Amendment 73 is formulated as a ballot access restriction rather than as an outright disqualification is of constitutional significance. Our resolution of these issues draws upon our prior resolution of a related but distinct issue: whether Congress has the power to add to or alter the qualifications of its Members.

Twenty-six years ago, in Powell v. McCormack, 395 U. S. 486 (1969), we reviewed the history and text of the Qualifications Clauses^[4] in a case involving an attempted exclusion [788] of a duly elected Member of Congress. The principal issue was whether the power granted to each House in Art. I, § 5, cl. 1, to judge the "Qualifications of its own Members"^[5] includes the power to impose qualifications other than those set forth in the text of the Constitution. In an opinion by Chief Justice Warren for eight Members of the Court,^[6] we held that it does not. Because of the obvious importance of the issue, the Court's review of the history and meaning of the relevant constitutional text was especially thorough. We therefore begin our analysis today with a full statement of what we decided in that case.

The Issue in Powell

In November 1966, Adam Clayton Powell, Jr., was elected from a District in New York to serve in the United States House of Representatives for the 90th Congress. Allegations that he had engaged in serious misconduct while serving as a committee chairman during the 89th Congress led to the appointment of a Select Committee to determine his eligibility to take his seat. That committee found that Powell met the age, citizenship, and residency requirements set forth in Art. I, § 2, cl. 2. The committee also found, however, that Powell had wrongfully diverted House funds for the use of others and himself and had made false reports on expenditures of foreign currency. Based on those findings, the House after debate adopted House Resolution 278, excluding [789] Powell from membership in the House, and declared his seat vacant. See 395 U. S., at 489-493.

Powell and several voters of the district from which he had been elected filed suit seeking a declaratory judgment that the House Resolution was invalid because Art. I, § 2, cl. 2, sets forth the exclusive qualifications for House membership. We ultimately accepted that contention, concluding that the House of Representatives has no "authority to exclude^[7] any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution." 395 U. S., at 522 (emphasis in original); see also id., at 547.^[8] In reaching that conclusion, we undertook a detailed historical review to determine the intent of the Framers. Though recognizing that the Constitutional Convention debates themselves were inconclusive, see id. , at 532, we determined that the "relevant historical materials" reveal that Congress has no power to alter the qualifications in the text of the Constitution, id. , at 522.

Powell's Reliance on History

We started our analysis in Powell by examining the British experience with qualifications for membership in Parliament, focusing in particular on the experience of John Wilkes. While serving as a member of Parliament, Wilkes had published an attack on a peace treaty with France. This [790] literary endeavor earned Wilkes a conviction for seditious libel and a 22-month prison sentence. In addition, Parliament declared Wilkes ineligible for membership and ordered him expelled. Despite (or perhaps because of) these difficulties, Wilkes was reelected several times. Parliament, however, persisted in its refusal to seat him. After several years of Wilkes' efforts, the House of Commons voted to expunge the resolutions that had expelled Wilkes and had declared him ineligible, labeling those prior actions "`subversive of the rights of the whole body of electors of this kingdom.' " Id. , at 528, quoting 22 Parliamentary History of England 1411 (1782) (Parl. Hist. Eng.). After reviewing Wilkes' "long and bitter struggle for the right of the British electorate to be represented by men of their own choice," 395 U. S., at 528, we concluded in Powell that "on the eve of the Constitutional Convention, English precedent stood for the proposition that `the law of the land had regulated the qualifications of members to serve in parliament' and those qualifications were `not occasional but fixed.' " Ibid. , quoting 16 Parl. Hist. Eng. 589, 590 (1769).

Against this historical background, we viewed the Convention debates as manifesting the Framers' intent that the qualifications in the Constitution be fixed and exclusive. We found particularly revealing the debate concerning a proposal made by the Committee of Detail that would have given Congress the power to add property qualifications. James Madison argued that such a power would vest "`an improper & dangerous power in the Legislature,' " by which the Legislature "`can by degrees subvert the Constitution.' " 395 U. S., at 533-534, quoting 2 Records of the Federal Convention of 1787, pp. 249-250 (M. Farrand ed. 1911) (hereinafter Farrand).^[9] Madison continued: "`A Republic may be [791] converted into an aristocracy or oligarchy as well by limiting the number capable of being elected, as the number authorised to elect.' " 395 U. S., at 534, quoting 2 Farrand 250. We expressly noted that the "parallel between Madison's arguments and those made in Wilkes' behalf is striking." 395 U. S., at 534.

The Framers further revealed their concerns about congressional abuse of power when Gouverneur Morris suggested modifying the proposal of the Committee of Detail to grant Congress unfettered power to add qualifications. We noted that Hugh Williamson "expressed concern that if a majority of the legislature should happen to be `composed of any particular description of men, of lawyers for example,. . . the future elections might be secured to their own body.' " Id. , at 535, quoting 2 Farrand 250. We noted, too, that Madison emphasized the British Parliament's attempts to regulate qualifications, and that he observed: "`[T]he abuse they had made of it was a lesson worthy of our attention.' " 395 U. S., at 535, quoting 2 Farrand 250. We found significant that the Convention rejected both Morris' modification and the Committee's proposal.

We also recognized in Powell that the post-Convention ratification debates confirmed that the Framers understood the qualifications in the Constitution to be fixed and unalterable by Congress. For example, we noted that in response to the antifederalist charge that the new Constitution favored the wealthy and well born, Alexander Hamilton wrote:

"`The truth is that there is no method of securing to the rich the preference apprehended but by prescribing qualifications of property either for those who may elect or be elected. But this forms no part of the power to be conferred upon the national government. . . . The [792] qualifications of the persons who may choose or be cho- sen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalter- able by the legislature. ` " 395 U. S., at 539, quoting The Federalist No. 60, p. 371 (C. Rossiter ed. 1961) (emphasis added) (hereinafter The Federalist).

We thus attached special significance to "Hamilton's express reliance on the immutability of the qualifications set forth in the Constitution." 395 U. S., at 540. Moreover, we reviewed the debates at the state conventions and found that they "also demonstrate the Framers' understanding that the qualifications for members of Congress had been fixed in the Constitution." Ibid.; see, e. g., id. , at 541, citing 3 Debates on the Adoption of the Federal Constitution 8 (J. Elliot ed. 1863) (hereinafter Elliot's Debates) (Wilson Carey Nicholas, Virginia).^[10]

The exercise by Congress of its power to judge the qualifications of its Members further confirmed this understanding. We concluded that, during the first 100 years of its existence, "Congress strictly limited its power to judge the qualifications of its members to those enumerated in the Constitution." 395 U. S., at 542.

As this elaborate summary reveals, our historical analysis in Powell was both detailed and persuasive. We thus conclude now, as we did in Powell, that history shows that, with [793] respect to Congress, the Framers intended the Constitution to establish fixed qualifications.^[11]

Powell's Reliance on Democratic Principles

In Powell, of course, we did not rely solely on an analysis of the historical evidence, but instead complemented that analysis with "an examination of the basic principles of our democratic system." Id. , at 548. We noted that allowing Congress to impose additional qualifications would violate that "fundamental principle of our representative democracy. . . `that the people should choose whom they please to govern them.' " Id. , at 547, quoting 2 Elliot's Debates 257 (A. Hamilton, New York).

Our opinion made clear that this broad principle incorporated at least two fundamental ideas.^[12] First, we emphasized [794] the egalitarian concept that the opportunity to be elected was open to all.^[13] We noted in particular Madison's statement in The Federalist that "`[u]nder these reasonable limitations [enumerated in the Constitution], the door of this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith.' " Powell, 395 U. S., at 540, n. 74, quoting The Federalist No. 52, at 326. Similarly, we noted that Wilson Carey Nicholas defended the Constitution against the charge that it "violated democratic principles" by arguing: "`It has ever been considered a great security to liberty, that very few should be excluded from the right of being chosen to the legislature. This Constitution has amply attended to this idea. We find no qualifications required except those of age and residence.' " 395 U. S., at 541, quoting 3 Elliot's Debates 8.

Second, we recognized the critical postulate that sovereignty is vested in the people, and that sovereignty confers on the people the right to choose freely their representatives to the National Government. For example, we noted that "Robert Livingston . . . endorsed this same fundamental principle: `The people are the best judges who ought to represent them. To dictate and control them, to tell them whom they shall not elect, is to abridge their natural [795] rights.' " 395 U. S., at 541, n. 76, quoting 2 Elliot's Debates 292-293. Similarly, we observed that "[b]efore the New York convention . . . , Hamilton emphasized: `The true principle of a republic is, that the people should choose whom they please to govern them. Representation is imperfect in proportion as the current of popular favor is checked. This great source of free government, popular election, should be perfectly pure, and the most unbounded liberty allowed.' " 395 U. S., at 540-541, quoting 2 Elliot's Debates 257. Quoting from the statement made in 1807 by the Chairman of the House Committee on Elections, we noted that "restrictions upon the people to choose their own representatives must be limited to those `absolutely necessary for the safety of the society.' " 395 U. S., at 543, quoting 17 Annals of Cong. 874 (1807). Thus, in Powell, we agreed with the sentiment expressed on behalf of Wilkes' admission to Parliament: "`That the right of the electors to be represented by men of their own choice, was so essential for the preservation of all their other rights, that it ought to be considered as one of the most sacred parts of our constitution.' " 395 U. S., at 534, n. 65, quoting 16 Parl. Hist. Eng. 589-590 (1769).

Powell thus establishes two important propositions: first, that the "relevant historical materials" compel the conclusion that, at least with respect to qualifications imposed by Congress, the Framers intended the qualifications listed in the Constitution to be exclusive; and second, that that conclusion is equally compelled by an understanding of the "fundamental principle of our representative democracy . . . `that the people should choose whom they please to govern them.' " 395 U. S., at 547.

Powell's Holding

Petitioners argue somewhat half-heartedly that the narrow holding in Powell, which involved the power of the House to exclude a Member pursuant to Art. I, § 5, does not control the more general question whether Congress has the [796] power to add qualifications. Powell, however, is not susceptible to such a narrow reading. Our conclusion that Congress may not alter or add to the qualifications in the Constitution was integral to our analysis and outcome. See, e. g., id. , at 540 (noting "Framers' understanding that the qualifications for members of Congress had been fixed in the Constitution"). Only two Terms ago we confirmed this understanding of Powell in Nixon v. United States, 506 U. S. 224 (1993). After noting that the three qualifications for membership specified in Art. I, § 2, are of "a precise, limited nature" and "unalterable by the legislature, " we explained:

"Our conclusion in Powell was based on the fixed meaning of `[q]ualifications' set forth in Art. I, § 2. The claim by the House that its power to `be the Judge of the Elections, Returns and Qualifications of its own Members' was a textual commitment of unreviewable authority was defeated by the existence of this separate provision specifying the only qualifications which might be imposed for House membership." Id. , at 237.^[14] [797] Un surprisingly, the state courts and lower federal courts have similarly concluded that Powell conclusively resolved the issue whether Congress has the power to impose additional qualifications. See, e. g., Joyner v. Mofford, 706 F. 2d 1523, 1528 (CA9 1983) ("In Powell . . . , the Supreme Court accepted this restrictive view of the Qualifications Clause— at least as applied to Congress"); Michel v. Anderson, 14 F. 3d 623 (CADC 1994) (citing Nixon `s description of Powell `s holding); Stumpf v. Lau, 108 Nev. 826, 830, 839 P. 2d 120, 122 (1992) (citing Powell for the proposition that "[n]ot even Congress has the power to alter qualifications for these constitutional federal officers").^[15]

[798] In sum, after examining Powell `s historical analysis and its articulation of the "basic principles of our democratic system," we reaffirm that the qualifications for service in Congress set forth in the text of the Constitution are "fixed," at least in the sense that they may not be supplemented by Congress.

III

Our reaffirmation of Powell does not necessarily resolve the specific questions presented in these cases. For petitioners argue that whatever the constitutionality of additional qualifications for membership imposed by Congress, the historical and textual materials discussed in Powell do not support the conclusion that the Constitution prohibits additional qualifications imposed by States. In the absence of such a constitutional prohibition, petitioners argue, the Tenth Amendment and the principle of reserved powers require that States be allowed to add such qualifications.

Before addressing these arguments, we find it appropriate to take note of the striking unanimity among the courts that have considered the issue. None of the overwhelming array of briefs submitted by the parties and amici has called to our attention even a single case in which a state court or federal court has approved of a State's addition of qualifications for a Member of Congress. To the contrary, an impressive number of courts have determined that States lack the authority to add qualifications. See, e. g., Chandler v. Howell, 104 Wash. 99, 175 P. 569 (1918); Eckwall v. Stadelman, 146 Ore. 439, 446, 30 P. 2d 1037, 1040 (1934); Stockton v. McFarland, 56 Ariz. 138, 144, 106 P. 2d 328, 330 (1940); State ex rel. Johnson v. Crane, 65 Wyo. 189, 197 P. 2d 864 (1948); Dillon v. Fiorina, 340 F. Supp. 729, 731 (N. M. 1972); Stack v. Adams, 315 F. Supp. 1295, 1297-1298 (ND Fla. 1970); Buckingham v. State, 42 Del. 405, 35 A. 2d 903, 905 (1944); Stumpf v. Lau, 108 Nev. 826, 830, 839 P. 2d 120, 123 (1992); Danielson v. Fitzsimmons, 232 Minn. 149, 151, 44 N. W. 2d 484, 486 (1950); In re Opinion of Judges, 79 S. D. 585, 587, [799] 116 N. W. 2d 233, 234 (1962). Courts have struck down state-imposed qualifications in the form of term limits, see, e. g., Thorsted v. Gregoire, 841 F. Supp. 1068, 1081 (WD Wash. 1994); Stumpf v. Lau, 108 Nev., at 830, 839 P. 2d, at 123, district residency requirements, see, e. g., Hellmann v. Collier, 217 Md. 93, 100, 141 A. 2d 908, 911 (1958); Dillon v. Fiorina, 340 F. Supp., at 731; Exon v. Tiemann, 279 F. Supp. 609, 613 (Neb. 1968); State ex rel. Chavez v. Evans, 79 N. M. 578, 581, 446 P. 2d 445, 448 (1968) (per curiam), loyalty oath requirements, see, e. g., Shub v. Simpson, 196 Md. 177, 199, 76 A. 2d 332, 341, appeal dism'd, 340 U. S. 881 (1950); In re O'Connor, 173 Misc. 419, 421, 17 N. Y. S. 2d 758, 760 (Super. Ct. 1940), and restrictions on those convicted of felonies, see, e. g., Application of Ferguson, 57 Misc. 2d 1041, 1043, 294 N. Y. S. 2d 174, 176 (Super. Ct. 1968); Danielson v. Fitzsimmons, 232 Minn., at 151, 44 N. W. 2d, at 486; State ex rel. Eaton v. Schmahl, 140 Minn. 219, 220, 167 N. W. 481 (1918) (per curiam). Prior to Powell, the commentators were similarly unanimous. See, e. g., 1 W. Blackstone, Commentaries, Appendix 213 (S. Tucker ed. 1803) ("[T]hese provisions, as they require qualifications which the constitution does not, may possibly be found to be nugatory"); 1 Story § 627 (each Member of Congress is "an officer of the union, deriving his powers and qualifications from the constitution, and neither created by, dependent upon, nor controllable by, the states"); 1 J. Kent, Commentaries on American Law 228, n. a (3d ed. 1836) ("[T]he objections to the existence of any such power [on the part of the States to add qualifications are] . . . too palpable and weighty to admit of any discussion"); G. McCrary, American Law of Elections § 322 (4th ed. 1897) ("It is not competent for any State to add to or in any manner change the qualifications for a Federal office, as prescribed by the Constitution or laws of the United States"); T. Cooley, General Principles of Constitutional Law 268 (2d ed. 1891) ("The Constitution and laws of the United States determine what shall be the qualifications for federal offices, and state [800] constitutions and laws can neither add to nor take away from them"); C. Burdick, Law of the American Constitution 160 (1922) ("It is clearly the intention of the Constitution that all persons not disqualified by the terms of that instrument should be eligible to the federal office of Representative"); id. , at 165 ("It is as clear that States have no more right to add to the constitutional qualifications of Senators than they have to add to those for Representatives"); Warren 422 ("The elimination of all power in Congress to fix qualifications clearly left the provisions of the Constitution itself as the sole source of qualifications").^[16] This impressive and uniform body of judicial decisions and learned commentary indicates that the obstacles confronting petitioners are formidable indeed.

Petitioners argue that the Constitution contains no express prohibition against state-added qualifications, and that Amendment 73 is therefore an appropriate exercise of a State's reserved power to place additional restrictions on the choices that its own voters may make. We disagree for two independent reasons. First, we conclude that the power to add qualifications is not within the "original powers" of the States, and thus is not reserved to the States by the Tenth Amendment. Second, even if States possessed some original power in this area, we conclude that the Framers intended [801] the Constitution to be the exclusive source of qualifications for Members of Congress, and that the Framers thereby "divested" States of any power to add qualifications.

The "plan of the convention" as illuminated by the historical materials, our opinions, and the text of the Tenth Amendment draws a basic distinction between the powers of the newly created Federal Government and the powers retained by the pre-existing sovereign States. As Chief Justice Marshall explained, "it was neither necessary nor proper to define the powers retained by the States. These powers proceed, not from the people of America, but from the people of the several States; and remain, after the adoption of the constitution, what they were before, except so far as they may be abridged by that instrument." Sturges v. Crowninshield, 4 Wheat. 122, 193 (1819).

This classic statement by the Chief Justice endorsed Hamilton's reasoning in The Federalist No. 32 that the plan of the Constitutional Convention did not contemplate "[a]n entire consolidation of the States into one complete national sovereignty," but only a partial consolidation in which "the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States." The Federalist No. 32, at 198. The text of the Tenth Amendment unambiguously confirms this principle:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

As we have frequently noted, "[t]he States unquestionably do retain a significant measure of sovereign authority. They do so, however, only to the extent that the Constitution has not divested them of their original powers and transferred those powers to the Federal Government." Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 549 (1985) (internal quotation marks and citation omitted) (emphasis [802] added); see also New York v. United States, 505 U. S. 144, 155-156 (1992).

Source of the Power

Contrary to petitioners' assertions, the power to add qualifications is not part of the original powers of sovereignty that the Tenth Amendment reserved to the States. Petitioners' Tenth Amendment argument misconceives the nature of the right at issue because that Amendment could only "reserve" that which existed before. As Justice Story recognized, "the states can exercise no powers whatsoever, which exclusively spring out of the existence of the national government, which the constitution does not delegate to them. . . . No state can say, that it has reserved, what it never possessed." 1 Story § 627.

Justice Story's position thus echoes that of Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316 (1819). In McCulloch, the Court rejected the argument that the Constitution's silence on the subject of state power to tax corporations chartered by Congress implies that the States have "reserved" power to tax such federal instrumentalities. As Chief Justice Marshall pointed out, an "original right to tax" such federal entities "never existed, and the question whether it has been surrendered, cannot arise." Id. , at 430. See also Crandall v. Nevada, 6 Wall. 35, 46 (1868). In language that presaged Justice Story's argument, Chief Justice Marshall concluded: "This opinion does not deprive the States of any resources which they originally possessed." 4 Wheat., at 436.^[17]

[803] With respect to setting qualifications for service in Congress, no such right existed before the Constitution was ratified. The contrary argument overlooks the revolutionary character of the Government that the Framers conceived. Prior to the adoption of the Constitution, the States had joined together under the Articles of Confederation. In that system, "the States retained most of their sovereignty, like independent nations bound together only by treaties." Wesberry v. Sanders, 376 U. S. 1, 9 (1964). After the Constitutional Convention convened, the Framers were presented with, and eventually adopted a variation of, "a plan not merely to amend the Articles of Confederation but to create an entirely new National Government with a National Executive, National Judiciary, and a National Legislature." Id. , at 10. In adopting that plan, the Framers envisioned a uniform national system, rejecting the notion that the Nation was a collection of States, and instead creating a direct link between the National Government and the people of the United States. See, e. g., FERC v. Mississippi, 456 U. S. 742, 791 (1982) (O'Connor, J., concurring in judgment in part and dissenting in part) ("The Constitution . . . permitt[ed] direct contact between the National Government and the individual citizen"). In that National Government, representatives owe primary allegiance not to the people of a State, but to the people of the Nation. As Justice Story observed, each Member of Congress is "an officer of the union, deriving his powers and qualifications from the constitution, and neither created by, dependent upon, nor controllable by, the states. . . . Those officers owe their existence and functions to the united voice of the whole, not of a portion, of the people." 1 Story § 627. Representatives and Senators are as much officers of the entire Union as is the President. States thus "have just as much right, and no more, to prescribe new qualifications for a representative, as they have for a president. . . . It is no original prerogative of state [804] power to appoint a representative, a senator, or president for the union." Ibid.^[18]

We believe that the Constitution reflects the Framers' general agreement with the approach later articulated by Justice Story. For example, Art. I, § 5, cl. 1, provides: "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members." The text of the Constitution thus gives the representatives of all the people the final say in judging the qualifications of the representatives of any one State. For this reason, the dissent falters when it states that "the people of Georgia have no say over whom the people of Massachusetts select to represent them in Congress." Post, at 859.

Two other sections of the Constitution further support our view of the Framers' vision. First, consistent with Story's view, the Constitution provides that the salaries of representatives should "be ascertained by Law, and paid out of the Treasury of the United States," Art. I, § 6, rather than by individual States. The salary provisions reflect the view that representatives owe their allegiance to the people, and not to the States. Second, the provisions governing elections reveal the Framers' understanding that powers over the election of federal officers had to be delegated to, rather than reserved by, the States. It is surely no coincidence that the context of federal elections provides one of the few areas in which the Constitution expressly requires action by the States, namely that "[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be [805] prescribed in each State by the Legislature thereof." Art. I, § 4, cl. 1. This duty parallels the duty under Article II that "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors." Art. II, § 1, cl. 2. These Clauses are express delegations of power to the States to act with respect to federal elections.^[19]

This conclusion is consistent with our previous recognition that, in certain limited contexts, the power to regulate the incidents of the federal system is not a reserved power of the States, but rather is delegated by the Constitution. Thus, we have noted that "[w]hile, in a loose sense, the right to vote for representatives in Congress is sometimes spoken of as a right derived from the states, . . . this statement is true only in the sense that the states are authorized by the Constitution, to legislate on the subject as provided by § 2 of Art. I." United States v. Classic, 313 U. S. 299, 315 (1941). Cf. Hawke v. Smith, No. 1, 253 U. S. 221, 230 (1920) ("[T]he power to ratify a proposed amendment to the Federal Constitution has its source in the Federal Constitution. The act of ratification by the State derives its authority from the Federal Constitution to which the State and its people have alike assented").

In short, as the Framers recognized, electing representatives to the National Legislature was a new right, arising from the Constitution itself. The Tenth Amendment thus provides no basis for concluding that the States possess reserved power to add qualifications to those that are fixed in the Constitution. Instead, any state power to set the qualifications for membership in Congress must derive not from the reserved powers of state sovereignty, but rather from the delegated powers of national sovereignty. In the absence of any constitutional delegation to the States of power to add qualifications to those enumerated in the Constitution, such a power does not exist.

[806] The Preclusion of State Power

Even if we believed that States possessed as part of their original powers some control over congressional qualifications, the text and structure of the Constitution, the relevant historical materials, and, most importantly, the "basic principles of our democratic system" all demonstrate that the Qualifications Clauses were intended to preclude the States from exercising any such power and to fix as exclusive the qualifications in the Constitution.

Much of the historical analysis was undertaken by the Court in Powell. See supra, at 789-793. There is, however, additional historical evidence that pertains directly to the power of the States. That evidence, though perhaps not as extensive as that reviewed in Powell, leads unavoidably to the conclusion that the States lack the power to add qualifications.

The Convention and Ratification Debates

The available affirmative evidence indicates the Framers' intent that States have no role in the setting of qualifications. In Federalist Paper No. 52, dealing with the House of Representatives, Madison addressed the "qualifications of the electors and the elected." The Federalist No. 52, at 325. Madison first noted the difficulty in achieving uniformity in the qualifications for electors, which resulted in the Framers' decision to require only that the qualifications for federal electors be the same as those for state electors. Madison argued that such a decision "must be satisfactory to every State, because it is comfortable to the standard already established, or which may be established, by the State itself." Id. , at 326. Madison then explicitly contrasted the state control over the qualifications of electors with the lack of state control over the qualifications of the elected:

"The qualifications of the elected, being less carefully and properly defined by the State constitutions, and being at the same time more susceptible of uniformity, [807] have been very properly considered and regulated by the convention. A representative of the United States must be of the age of twenty-five years; must have been seven years a citizen of the United States; must, at the time of his election be an inhabitant of the State he is to represent; and, during the time of his service must be in no office under the United States. Under these reasonable limitations, the door of this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith." Ibid.^[20] [808] Madison emphasized this same idea in The Federalist No. 57:

"Who are to be the objects of popular choice? Every citizen whose merit may recommend him to the esteem and confidence of his country. No qualification of wealth, of birth, of religious faith, or of civil profession is permitted to fetter the judgment or disappoint the inclination of the people. " The Federalist No. 57, at 351 (emphasis added).

The provisions in the Constitution governing federal elections confirm the Framers' intent that States lack power to add qualifications. The Framers feared that the diverse interests of the States would undermine the National Legislature, and thus they adopted provisions intended to minimize the possibility of state interference with federal elections. For example, to prevent discrimination against federal electors, the Framers required in Art. I, § 2, cl. 1, that the qualifications for federal electors be the same as those for state electors. As Madison noted, allowing States to differentiate between the qualifications for state and federal electors "would have rendered too dependent on the State governments that branch of the federal government which ought to be dependent on the people alone." The Federalist No. 52, at 326. Similarly, in Art. I, § 4, cl. 1, though giving the States the freedom to regulate the "Times, Places and Manner of holding Elections," the Framers created a safeguard against state abuse by giving Congress the power to "by Law make or alter such Regulations." The Convention debates make clear that the Framers' overriding concern was the potential for States' abuse of the power to set the [809] "Times, Places and Manner" of elections. Madison noted that "[i]t was impossible to foresee all the abuses that might be made of the discretionary power." 2 Farrand 240. Gouverneur Morris feared that "the States might make false returns and then make no provisions for new elections." Id. , at 241. When Charles Pinckney and John Rutledge moved to strike the congressional safeguard, the motion was soundly defeated. Id. , at 240-241. As Hamilton later noted: "Nothing can be more evident than that an exclusive power of regulating elections for the national government, in the hands of the State legislatures, would leave the existence of the Union entirely at their mercy." The Federalist No. 59, at 363. See also ibid. (one justification for Times, Places and Manner Clause is that "[i]f we are in a humor to presume abuses of power, it is as fair to presume them on the part of the State governments as on the part of the general government").^[21]

The Framers' discussion of the salary of representatives reveals similar concerns. When the issue was first raised, Madison argued that congressional compensation should be fixed in the Constitution, rather than left to state legislatures, because otherwise "it would create an improper dependence." 1 Farrand 216. George Mason agreed, noting [810] that "the parsimony of the States might reduce the provision so low that . . . the question would be not who were most fit to be chosen, but who were most willing to serve." Ibid.

When the issue was later reopened, Nathaniel Gorham stated that he "wished not to refer the matter to the State Legislatures who were always paring down salaries in such a manner as to keep out of offices men most capable of executing the functions of them." Id. , at 372. Edmund Randolph agreed that "[i]f the States were to pay the members of the Nat[ional] Legislature, a dependence would be created that would vitiate the whole System." Ibid. Rufus King "urged the danger of creating a dependence on the States," ibid. , and Hamilton noted that "[t]hose who pay are the masters of those who are paid," id. , at 373. The Convention ultimately agreed to vest in Congress the power to set its own compensation. See Art. I, § 6.^[22]

In light of the Framers' evident concern that States would try to undermine the National Government, they could not have intended States to have the power to set qualifications. Indeed, one of the more anomalous consequences of petitioners' argument is that it accepts federal supremacy over the procedural aspects of determining the times, places, and manner of elections while allowing the States carte blanche with respect to the substantive qualifications for membership in Congress.

The dissent nevertheless contends that the Framers' distrust of the States with respect to elections does not preclude the people of the States from adopting eligibility requirements to help narrow their own choices. See post, at 888-889. As the dissent concedes, post, at 893, however, the Framers were unquestionably concerned that the States would simply not hold elections for federal officers, and therefore the Framers gave Congress the power to "make [811] or alter" state election regulations. Yet under the dissent's approach, the States could achieve exactly the same result by simply setting qualifications for federal office sufficiently high that no one could meet those qualifications. In our view, it is inconceivable that the Framers would provide a specific constitutional provision to ensure that federal elections would be held while at the same time allowing States to render those elections meaningless by simply ensuring that no candidate could be qualified for office. Given the Framers' wariness over the potential for state abuse, we must conclude that the specification of fixed qualifications in the constitutional text was intended to prescribe uniform rules that would preclude modification by either Congress or the States.^[23]

We find further evidence of the Framers' intent in Art. I, § 5, cl. 1, which provides: "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members." That Art. I, § 5, vests a federal tribunal with ultimate authority to judge a Member's qualifications is fully consistent with the understanding that those qualifications are fixed in the Federal Constitution, but not with the understanding that they can be altered by the States. If the States had the right to prescribe additional qualifications— [812] such as property, educational, or professional qualifications— for their own representatives, state law would provide the standard for judging a Member's eligibility.As we concluded in Murdock v. Memphis, 20 Wall. 590 (1875), federal questions are generally answered finally by federal tribunals because rights which depend on federal law "should be the same everywhere" and "their construction should be uniform." Id., at 632. The judging of questions concerning rights which depend on state law is not, however, normally assigned to federal tribunals. See id., at 636. The Constitution's provision for each House to be the judge of its own qualifications thus provides further evidence that the Framers believed that the primary source of those qualifications would be federal law.

We also find compelling the complete absence in the ratification debates of any assertion that States had the power to add qualifications. In those debates, the question whether to require term limits, or "rotation," was a major source of controversy. The draft of the Constitution that was submitted for ratification contained no provision for rotation.^[24] In arguments that echo in the preamble to Arkansas' Amendment 73, opponents of ratification condemned the absence of a rotation requirement, noting that "there is no doubt that senators will hold their office perpetually; and in this situation, they must of necessity lose their dependence, and their attachments to the people."^[25] Even proponents of ratification [813] expressed concern about the "abandonment in every instance of the necessity of rotation in office."^[26] At several ratification conventions, participants proposed amendments that would have required rotation.^[27]

The Federalists' responses to those criticisms and proposals addressed the merits of the issue, arguing that rotation was incompatible with the people's right to choose. As we noted above, Robert Livingston argued:

[814] "The people are the best judges who ought to represent them. To dictate and control them, to tell them whom they shall not elect, is to abridge their natural rights. This rotation is an absurd species of ostracism." 2 Elliot's Debates 292-293.

Similarly, Hamilton argued that the representatives' need for reelection rather than mandatory rotation was the more effective way to keep representatives responsive to the people, because "[w]hen a man knows he must quit his station, let his merit be what it may, he will turn his attention chiefly to his own emolument." Id. , at 320.^[28]

Regardless of which side has the better of the debate over rotation, it is most striking that nowhere in the extensive ratification debates have we found any statement by either a proponent or an opponent of rotation that the draft constitution would permit States to require rotation for the representatives of their own citizens. If the participants in the debate had believed that the States retained the authority to impose term limits, it is inconceivable that the Federalists would not have made this obvious response to the arguments of the pro-rotation forces. The absence in an otherwise freewheeling debate of any suggestion that States had the power to impose additional qualifications unquestionably reflects the Framers' common understanding that States lacked that power.

In short, if it had been assumed that States could add additional qualifications, that assumption would have provided the basis for a powerful rebuttal to the arguments being advanced. The failure of intelligent and experienced advocates to utilize this argument must reflect a general agreement [815] that its premise was unsound, and that the power to add qualifications was one that the Constitution denied the States.^[29]

[816] Congressional Experience

Congress' subsequent experience with state-imposed qualifications provides further evidence of the general consensus on the lack of state power in this area. In Powell, we examined that experience and noted that during the first 100 years of its existence, "Congress strictly limited its power to judge the qualifications of its members to those enumerated in the Constitution." 395 U. S., at 542. Congress first confronted the issue in 1807 when it faced a challenge to the qualifications of William McCreery, a Representative from Maryland who allegedly did not satisfy a residency requirement imposed by that State. In recommending that McCreery be seated, the Report of the House Committee on Elections noted:

"`The committee proceeded to examine the Constitution, with relation to the case submitted to them, and find that qualifications of members are therein deter- mined, without reserving any authority to the State Legislatures to change, add to, or diminish those quali- fications; and that, by that instrument, Congress is constituted the sole judge of the qualifications prescribed by it, and are obliged to decide agreeably to the Constitutional rules . . . .' " Powell, 395 U. S., at 542, quoting 17 Annals of Cong. 871 (1807) (emphasis added).^[30]

The Chairman of the House Committee on Elections elaborated during debate:

[817] "`The Committee of Elections considered the qualifications of members to have been unalterably determined by the Federal Convention, unless changed by an authority equal to that which framed the Constitution at first; that neither the State nor the Federal Legislatures are vested with authority to add to those qualifications, so as to change them.' " Powell, 395 U. S., at 542-543, quoting from 17 Annals of Cong. 872 (1807).

As we noted in Powell, the congressional debate over the committee's recommendation tended to focus on the "narrow issue of the power of the States to add to the standing qualifications set forth in the Constitution," 395 U. S., at 543. The whole House, however, did not vote on the committee's Report, and instead voted only on a simple resolution: "Resolved, That William McCreery is entitled to his seat in this House." 17 Annals of Cong. 1238 (1807). That resolution passed by a vote of 89 to 18. Ibid.

Though the House Debate may be inconclusive, commentators at the time apparently viewed the seating of McCreery as confirmation of the States' lack of power to add qualifications. For example, in a letter to Joseph Cabell, Thomas Jefferson noted the argument that "to add new qualifications to those of the Constitution would be as much an alteration as to detract from them"; he then added: "And so I think the House of Representatives of Congress decided in some case; I believe that of a member from Baltimore." Letter of Jan. 31, 1814, to Joseph C. Cabell, in 14 Writings of Thomas Jefferson 82 (A. Lipscomb ed. 1904).

Similarly, for over 150 years prior to Powell, commentators viewed the seating of McCreery as an expression of the view of the House that States could not add to the qualifications established in the Constitution. Thus, for example, referring to the McCreery debates, one commentator noted, "By the decision in this case, [and that in another contested election], it seems to have been settled that the States have not a right to require qualifications from members, different [818] from, or in addition to, those prescribed by the constitution." Cases of Contested Elections in Congress 171 (M. Clarke & D. Hall eds. 1834) (emphasis in original). Other commentators viewed the incident similarly. See, e. g., G. Paschal, The Constitution of the United States 66 (1876) (citing McCreery to support the proposition that "[t]he Constitution having fixed the qualifications of members, no additional qualifications can rightfully be required by the States") (emphasis in original); G. McCrary, American Law of Elections § 323 (4th ed. 1897) (citing McCreery and stating "A state law requiring that a Representative in Congress shall reside in a particular town and country within the district from which he is chosen is unconstitutional and void"); W. Sutherland, Notes on the Constitution of the United States 40 (1904) (citing McCreery to support statement that "[t]his clause fixes the qualifications of members so far as state action is concerned, and no additional qualifications can be required by the state"); C. Burdick, Law of the American Constitution 160 (1922) (citing McCreery to support the proposition that state-imposed "limitations have been held . . . not to be effective"). Finally, it is clear that in Powell we viewed the seating of McCreery as the House's acknowledgment that the qualifications in the Constitution were fixed. See 395 U. S., at 542-543.

The Senate experience with state-imposed qualifications further supports our conclusions. In 1887, for example, the Senate seated Charles Faulkner of West Virginia, despite the fact that a provision of the West Virginia Constitution purported to render him ineligible to serve. The Senate Committee on Privileges and Elections unanimously concluded that "no State can prescribe any qualification to the office of United States Senator in addition to those declared in the Constitution of the United States." S. Rep. No. 1, 50th Cong., 1st Sess., 4 (1887). The Senate Committee on Rules and Administration reached the same conclusion in 1964 when faced with a challenge to Pierre Salinger, who had [819] been appointed to serve as Senator from California. See S. Rep. No. 1381, 88th Cong., 2d Sess., 5 ("It is well settled that the qualifications established by the U. S. Constitution for the office of U. S. Senator are exclusive, and a State cannot, by constitutional or statutory provisions, add to or enlarge upon those qualifications").

We recognize, as we did in Powell, that "congressional practice has been erratic"^[31] and that the precedential value of congressional exclusion cases is "quite limited." Powell, 395 U. S., at 545-546. Nevertheless, those incidents lend support to the result we reach today.

Democratic Principles

Our conclusion that States lack the power to impose qualifications vindicates the same "fundamental principle of our representative democracy" that we recognized in Powell, namely, that "the people should choose whom they please to govern them." Id. , at 547 (internal quotation marks omitted).

As we noted earlier, the Powell Court recognized that an egalitarian ideal—that election to the National Legislature should be open to all people of merit—provided a critical foundation for the constitutional structure. This egalitarian theme echoes throughout the constitutional debates. In The Federalist No. 57, for example, Madison wrote:

"Who are to be the objects of popular choice? Every citizen whose merit may recommend him to the esteem and confidence of his country. No qualification of wealth, of birth, of religious faith, or of civil profession is permitted to fetter the judgment or disappoint the inclination of the people." The Federalist No. 57, at 351.

Similarly, hoping to persuade voters in New York that the Constitution should be ratified, John Stevens, Jr., wrote:

[820] "[N]o Government, that has ever yet existed in the world, affords so ample a field, to individuals of all ranks, for the display of political talents and abilities. . . . No man who has real merit, let his situation be what it will, need despair." 1 Bailyn 487, 492. And Timothy Pickering noted that, "while several of the state constitutions prescribe certain degrees of property as indispensable qualifications for offices, this which is proposed for the U. S. throws the door wide open for the entrance of every man who enjoys the confidence of his fellow citizens." Letter from T. Pickering to C. Tillinghast (Dec. 24, 1787), 1 Bailyn 289, 290 (emphasis in original).^[32] Additional qualifications pose the same obstacle to open elections whatever their source. The egalitarian ideal, so valued by the Framers, is thus compromised to the same degree by additional qualifications imposed by States as by those imposed by Congress.

Similarly, we believe that state-imposed qualifications, as much as congressionally imposed qualifications, would undermine the second critical idea recognized in Powell: that an aspect of sovereignty is the right of the people to vote for whom they wish. Again, the source of the qualification is of little moment in assessing the qualification's restrictive impact.

Finally, state-imposed restrictions, unlike the congressionally imposed restrictions at issue in Powell, violate a third idea central to this basic principle: that the right to choose [821] representatives belongs not to the States, but to the people. From the start, the Framers recognized that the "great and radical vice" of the Articles of Confederation was "the principle of LEGISLATION for STATES or GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES, and as contradistinguished from the INDIVIDUALS of whom they consist." The Federalist No. 15, at 108 (Hamilton). Thus the Framers, in perhaps their most important contribution, conceived of a Federal Government directly responsible to the people, possessed of direct power over the people, and chosen directly, not by States, but by the people. See, e. g., supra, at 802-804. The Framers implemented this ideal most clearly in the provision, extant from the beginning of the Republic, that calls for the Members of the House of Representatives to be "chosen every second Year by the People of the several States." Art. I, § 2, cl. 1. Following the adoption of the Seventeenth Amendment in 1913, this ideal was extended to elections for the Senate. The Congress of the United States, therefore, is not a confederation of nations in which separate sovereigns are represented by appointed delegates, but is instead a body composed of representatives of the people. As Chief Justice John Marshall observed: "The government of the Union, then, . . . is, emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit." McCulloch v. Maryland, 4 Wheat., at 404-405.^[33] Ours is a "government of the people, by the people, for the people." A. Lincoln, Gettysburg Address (1863).

[822] The Framers deemed this principle critical when they discussed qualifications. For example, during the debates on residency requirements, Morris noted that in the House, "the people at large, not the States, are represented." 2 Farrand 217 (emphasis in original) (footnote omitted). Similarly, George Read noted that the Framers "were forming a Nati[ona]l Gov[ernmen]t and such a regulation would correspond little with the idea that we were one people." Ibid. (emphasis in original). James Wilson "enforced the same consideration." Ibid.

Consistent with these views, the constitutional structure provides for a uniform salary to be paid from the national treasury, allows the States but a limited role in federal elections, and maintains strict checks on state interference with the federal election process. The Constitution also provides that the qualifications of the representatives of each State will be judged by the representatives of the entire Nation. The Constitution thus creates a uniform national body representing the interests of a single people.

Permitting individual States to formulate diverse qualifications for their representatives would result in a patchwork of state qualifications, undermining the uniformity and the national character that the Framers envisioned and sought to ensure. Cf. McCulloch v. Maryland, 4 Wheat., at 428— 429 ("Those means are not given by the people of a particular State, not given by the constituents of the legislature, . . . but by the people of all the States. They are given by all, for the benefit of all—and upon theory, should be subjected to that government only which belongs to all"). Such a patchwork would also sever the direct link that the Framers found so critical between the National Government and the people of the United States.^[34]

[823] State Practice

Petitioners attempt to overcome this formidable array of evidence against the States' power to impose qualifications by arguing that the practice of the States immediately after the adoption of the Constitution demonstrates their understanding that they possessed such power. One may properly question the extent to which the States' own practice is a reliable indicator of the contours of restrictions that the Constitution imposed on States, especially when no court has ever upheld a state-imposed qualification of any sort. See supra, at 798-799. But petitioners' argument is unpersuasive even on its own terms. At the time of the Convention, "[a]lmost all the State Constitutions required members of their Legislatures to possess considerable property." See Warren 416-417.^[35] Despite this near uniformity, only one [824] State, Virginia, placed similar restrictions on Members of Congress, requiring that a representative be, inter alia, a "freeholder." See 1788 Va. Acts, ch. 2, § 2.^[36] Just 15 years after imposing a property qualification, Virginia replaced that requirement with a provision requiring that representatives be only "qualified according to the constitution of the United States." 1813 Va. Acts, ch. 23, § 2. Moreover, several States, including New Hampshire, Georgia, Delaware, and South Carolina, revised their Constitutions at around the time of the Federal Constitution. In the revised Constitutions, each State retained property qualifications for its own [825] state elected officials yet placed no property qualification on its congressional representatives.^[37]

The contemporaneous state practice with respect to term limits is similar. At the time of the Convention, States widely supported term limits in at least some circumstances. The Articles of Confederation contained a provision for term limits.^[38] As we have noted, some members of the Convention had sought to impose term limits for Members of Congress.^[39] In addition, many States imposed term limits on [826] state officers,^[40] four placed limits on delegates to the Continental Congress,^[41] and several States voiced support for term limits for Members of Congress.^[42] Despite this widespread support, no State sought to impose any term limits on its own federal representatives. Thus, a proper assessment of contemporaneous state practice provides further persuasive evidence of a general understanding that the qualifications in the Constitution were unalterable by the States.^[43]

[827] In sum, the available historical and textual evidence, read in light of the basic principles of democracy underlying the Constitution and recognized by this Court in Powell, reveal the Framers' intent that neither Congress nor the States should possess the power to supplement the exclusive qualifications set forth in the text of the Constitution.

[828] IV

Petitioners argue that, even if States may not add qualifications, Amendment 73 is constitutional because it is not such a qualification, and because Amendment 73 is a permissible exercise of state power to regulate the "Times, Places and Manner of holding Elections." We reject these contentions.

Unlike §§ 1 and 2 of Amendment 73, which create absolute bars to service for long-term incumbents running for state office, § 3 merely provides that certain Senators and Representatives shall not be certified as candidates and shall not have their names appear on the ballot. They may run as write-in candidates and, if elected, they may serve. Petitioners contend that only a legal bar to service creates an impermissible qualification, and that Amendment 73 is therefore consistent with the Constitution.

Petitioners support their restrictive definition of qualifications with language from Storer v. Brown, 415 U. S. 724 (1974), in which we faced a constitutional challenge to provisions of the California Elections Code that regulated the procedures by which both independent candidates and candidates affiliated with qualified political parties could obtain ballot position in general elections. The code required candidates affiliated with a qualified party to win a primary election, and required independents to make timely filing of nomination papers signed by at least 5% of the entire vote cast in the last general election. The code also denied ballot position to independents who had voted in the most recent primary election or who had registered their affiliation with a qualified party during the previous year.

In Storer, we rejected the argument that the challenged procedures created additional qualifications as "wholly without merit." Id. , at 746, n. 16. We noted that petitioners "would not have been disqualified had they been nominated at a party primary or by an adequately supported independent petition and then elected at the general election." Ibid. [829] We concluded that the California Code "no more establishes an additional requirement for the office of Representative than the requirement that the candidate win the primary to secure a place on the general ballot or otherwise demonstrate substantial community support." Ibid. See also Joyner v. Mofford, 706 F. 2d, at 1531; Hopfmann v. Connolly, 746 F. 2d 97, 103 (CA1 1984), vacated in part on other grounds, 471 U. S. 459 (1985). Petitioners maintain that, under Storer, Amendment 73 is not a qualification.

We need not decide whether petitioners' narrow understanding of qualifications is correct because, even if it is, Amendment 73 may not stand. As we have often noted, "`[c]onstitutional rights would be of little value if they could be . . . indirectly denied.' " Harman v. Forssenius, 380 U. S. 528, 540 (1965), quoting Smith v. Allwright, 321 U. S. 649, 664 (1944). The Constitution "nullifies sophisticated as well as simple-minded modes" of infringing on constitutional protections. Lane v. Wilson, 307 U. S. 268, 275 (1939); Harman v. Forssenius, 380 U. S., at 540-541.

In our view, Amendment 73 is an indirect attempt to accomplish what the Constitution prohibits Arkansas from accomplishing directly. As the plurality opinion of the Arkansas Supreme Court recognized, Amendment 73 is an "effort to dress eligibility to stand for Congress in ballot access clothing," because the "intent and the effect of Amendment 73 are to disqualify congressional incumbents from further service." 316 Ark., at 266, 872 S. W. 2d, at 357.^[44] We must, of course, accept the state court's view of the purpose of its own law: We are thus authoritatively informed that the sole purpose of § 3 of Amendment 73 was to attempt to achieve a result that is forbidden by the Federal Constitution. Indeed, [830] it cannot be seriously contended that the intent behind Amendment 73 is other than to prevent the election of incumbents. The preamble of Amendment 73 states explicitly: "[T]he people of Arkansas . . . herein limit the terms of elected officials." Sections 1 and 2 create absolute limits on the number of terms that may be served. There is no hint that § 3 was intended to have any other purpose.

Petitioners do, however, contest the Arkansas Supreme Court's conclusion that the amendment has the same practical effect as an absolute bar. They argue that the possibility of a write-in campaign creates a real possibility for victory, especially for an entrenched incumbent. One may reasonably question the merits of that contention.^[45] Indeed, we are advised by the state court that there is nothing more than a faint glimmer of possibility that the excluded candidate will win.^[46] Our prior cases, too, have suggested that [831] write-in candidates have only a slight chance of victory.^[47] But even if petitioners are correct that incumbents may occasionally win reelection as write-in candidates, there is no denying that the ballot restrictions will make it significantly more difficult for the barred candidate to win the election. In our view, an amendment with the avowed purpose and obvious effect of evading the requirements of the Qualifications Clauses by handicapping a class of candidates cannot stand. To argue otherwise is to suggest that the Framers spent significant time and energy in debating and crafting Clauses that could be easily evaded. More importantly, allowing States to evade the Qualifications Clauses by "dress[ing] eligibility to stand for Congress in ballot access clothing" trivializes the basic principles of our democracy that underlie those Clauses. Petitioners' argument treats the Qualifications Clauses not as the embodiment of a grand principle, but rather as empty formalism. "`It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence.' " Gomillion v. Lightfoot, 364 U. S. 339, 345 (1960), quoting Frost & Frost Trucking Co. v. Railroad Comm'n of Cal., 271 U. S. 583, 594 (1926).

[832] Petitioners make the related argument that Amendment 73 merely regulates the "Manner" of elections, and that the amendment is therefore a permissible exercise of state power under Article I, § 4, cl. 1 (the Elections Clause), to regulate the "Times, Places and Manner" of elections.^[48] We cannot agree.

A necessary consequence of petitioners' argument is that Congress itself would have the power to "make or alter" a measure such as Amendment 73. Art. I, § 4, cl. 1. See Smiley v. Holm, 285 U. S. 355, 366-367 (1932) ("[T]he Congress may supplement these state regulations or may substitute its own"). That the Framers would have approved of such a result is unfathomable. As our decision in Powell and our discussion above make clear, the Framers were particularly concerned that a grant to Congress of the authority to set its own qualifications would lead inevitably to congressional self-aggrandizement and the upsetting of the delicate constitutional balance. See supra, at 790-791, and n. 10, supra. Petitioners would have us believe, however, that even as the Framers carefully circumscribed congressional power to set qualifications, they intended to allow Congress to achieve the same result by simply formulating the regulation as a ballot access restriction under the Elections Clause. We refuse to adopt an interpretation of the Elections Clause that would so cavalierly disregard what the Framers intended to be a fundamental constitutional safeguard.

Moreover, petitioners' broad construction of the Elections Clause is fundamentally inconsistent with the Framers' view of that Clause. The Framers intended the Elections Clause to grant States authority to create procedural regulations, not to provide States with license to exclude classes of candidates [833] from federal office. During the Convention debates, for example, Madison illustrated the procedural focus of the Elections Clause by noting that it covered "[w]hether the electors should vote by ballot or vivâ voce, should assemble at this place or that place; should be divided into districts or all meet at one place, sh[oul]d all vote for all the representatives; or all in a district vote for a number allotted to the district." 2 Farrand 240. Similarly, during the ratification debates, proponents of the Constitution noted: "[T]he power over the manner only enables them to determine how these electors shall elect—whether by ballot, or by vote, or by any other way." 4 Elliot's Debates 71 (Steele statement at North Carolina ratifying convention) (emphasis in original).^[49]

Hamilton made a similar point in The Federalist No. 60, in which he defended the Constitution's grant to Congress of the power to override state regulations. Hamilton expressly distinguished the broad power to set qualifications from the limited authority under the Elections Clause, noting that

"there is no method of securing to the rich the preference apprehended but by prescribing qualifications of property either for those who may elect or be elected. But this forms no part of the power to be conferred upon the national government. Its authority would be expressly restricted to the regulation of the times, the places, and the manner of elections." The Federalist No. 60, at 371 (emphasis in original).

As Hamilton's statement suggests, the Framers understood the Elections Clause as a grant of authority to issue procedural regulations, and not as a source of power to dictate [834] electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints.

Our cases interpreting state power under the Elections Clause reflect the same understanding. The Elections Clause gives States authority "to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved." Smiley v. Holm, 285 U. S., at 366. However, "[t]he power to regulate the time, place, and manner of elections does not justify, without more, the abridgment of fundamental rights." Tashjian v. Republican Party of Conn., 479 U. S. 208, 217 (1986). States are thus entitled to adopt "generally applicable and evenhanded restrictions that protect the integrity and reliability of the electoral process itself." Anderson v. Celebrezze, 460 U. S. 780, 788, n. 9 (1983). For example, in Storer v. Brown, 415 U. S. 724 (1974), the case on which petitioners place principal reliance, we upheld the validity of certain provisions of the California Elections Code. In so doing, we emphasized the States' interest in having orderly, fair, and honest elections "rather than chaos." Id. , at 730. We also recognized the "States' strong interest in maintaining the integrity of the political process by preventing interparty raiding," id., at 731, and explained that the specific requirements applicable to independents were "expressive of a general state policy aimed at maintaining the integrity of the various routes to the ballot," id., at 733. In other cases, we have approved the States' interests in avoiding "voter confusion, ballot overcrowding, or the presence of frivolous candidacies," Munro v. Socialist Workers Party, 479 U. S. 189, 194-195 (1986), in "seeking to assure that elections are operated equitably and efficiently," Burdick v. Takushi, 504 U. S., at 433, and in "guard[ing] against irregularity and error in the tabulation of votes," Roudebush v. Hartke, 405 U. S. 15, 25 (1972). In short, we have approved of state regulations designed to ensure that [835] elections are "`fair and honest and . . .[that] some sort of order, rather than chaos, . . .accompan[ies] the democratic processes.' " Burdick v. Takushi, 504 U. S., at 433, quoting Storer, 415 U. S., at 730.

The provisions at issue in Storer and our other Elections Clause cases were thus constitutional because they regulated election procedures and did not even arguably impose any substantive qualification rendering a class of potential candidates ineligible for ballot position. They served the state interest in protecting the integrity and regularity of the election process, an interest independent of any attempt to evade the constitutional prohibition against the imposition of additional qualifications for service in Congress. And they did not involve measures that exclude candidates from the ballot without reference to the candidates' support in the electoral process. Our cases upholding state regulations of election procedures thus provide little support for the contention that a state-imposed ballot access restriction is constitutional when it is undertaken for the twin goals of disadvantaging a particular class of candidates and evading the dictates of the Qualifications Clauses.^[50]

[836] We do not understand the dissent to contest our primary thesis, namely, that if the qualifications for Congress are fixed in the Constitution, then a state-passed measure with the avowed purpose of imposing indirectly such an additional qualification violates the Constitution. The dissent, instead, raises two objections, challenging the assertion that the Arkansas amendment has the likely effect of creating a qualification, post, at 917-919, and suggesting that the true intent of Amendment 73 was not to evade the Qualifications Clauses but rather to simply "level the playing field," post, at 922. Neither of these objections has merit.

As to the first, it is simply irrelevant to our holding today. As we note above in n. 45, our prior cases strongly suggest that write-in candidates will have only a slim chance of success, and the Arkansas plurality agreed. However, we expressly do not rest on this Court's prior observations regarding write-in candidates. Instead, we hold that a state amendment is unconstitutional when it has the likely effect of handicapping a class of candidates and has the sole purpose of creating additional qualifications indirectly. Thus, the dissent's discussion of the evidence concerning the possibility that a popular incumbent will win a write-in election is simply beside the point.

As to the second argument, we find wholly unpersuasive the dissent's suggestion that Amendment 73 was designed merely to "level the playing field." As we have noted, supra, at 829-830, it is obvious that the sole purpose of Amendment 73 was to limit the terms of elected officials, both state and federal, and that Amendment 73, therefore, may not stand.

[837] V

The merits of term limits, or "rotation," have been the subject of debate since the formation of our Constitution, when the Framers unanimously rejected a proposal to add such limits to the Constitution. The cogent arguments on both sides of the question that were articulated during the process of ratification largely retain their force today. Over half the States have adopted measures that impose such limits on some offices either directly or indirectly, and the Nation as a whole, notably by constitutional amendment, has imposed a limit on the number of terms that the President may serve.^[51] Term limits, like any other qualification for office, unquestionably restrict the ability of voters to vote for whom they wish. On the other hand, such limits may provide for the infusion of fresh ideas and new perspectives, and may decrease the likelihood that representatives will lose touch with their constituents. It is not our province to resolve this long-standing debate.

We are, however, firmly convinced that allowing the several States to adopt term limits for congressional service would effect a fundamental change in the constitutional framework. Any such change must come not by legislation adopted either by Congress or by an individual State, but rather—as have other important changes in the electoral process^[52]—through the amendment procedures set forth in Article V. The Framers decided that the qualifications for service in the Congress of the United States be fixed in the Constitution and be uniform throughout the Nation. That decision reflects the Framers' understanding that Members of Congress are chosen by separate constituencies, but that [838] they become, when elected, servants of the people of the United States. They are not merely delegates appointed by separate, sovereign States; they occupy offices that are integral and essential components of a single National Government. In the absence of a properly passed constitutional amendment, allowing individual States to craft their own qualifications for Congress would thus erode the structure envisioned by the Framers, a structure that was designed, in the words of the Preamble to our Constitution, to form a "more perfect Union."

The judgment is affirmed.

It is so ordered.

Justice Kennedy, concurring.

I join the opinion of the Court.

The majority and dissenting opinions demonstrate the intricacy of the question whether or not the Qualifications Clauses are exclusive. In my view, however, it is well settled that the whole people of the United States asserted their political identity and unity of purpose when they created the federal system. The dissent's course of reasoning suggesting otherwise might be construed to disparage the republican character of the National Government, and it seems appropriate to add these few remarks to explain why that course of argumentation runs counter to fundamental principles of federalism.

Federalism was our Nation's own discovery. The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other. The resulting Constitution created a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it. It is appropriate to recall these origins, which instruct us as to the [839] nature of the two different governments created and confirmed by the Constitution.

A distinctive character of the National Government, the mark of its legitimacy, is that it owes its existence to the act of the whole people who created it. It must be remembered that the National Government, too, is republican in essence and in theory. John Jay insisted on this point early in The Federalist Papers, in his comments on the government that preceded the one formed by the Constitution.

"To all general purposes we have uniformly been one people; each individual citizen everywhere enjoying the same national rights, privileges, and protection. . . .

"A strong sense of the value and blessings of union induced the people, at a very early period, to institute a federal government to preserve and perpetuate it. They formed it almost as soon as they had a political existence . . . ." The Federalist No. 2, pp. 38-39 (C. Rossiter ed. 1961) (hereinafter The Federalist).

Once the National Government was formed under our Constitution, the same republican principles continued to guide its operation and practice. As James Madison explained, the House of Representatives "derive[s] its powers from the people of America," and "the operation of the government on the people in their individual capacities" makes it "a national government," not merely a federal one. Id., No. 39, at 244, 245 (emphasis deleted). The Court confirmed this principle in McCulloch v. Maryland, 4 Wheat. 316, 404-405 (1819), when it said: "The government of the Union, then, . . . is, emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit." The same theory led us to observe as follows in Ex parte Yarbrough, 110 U. S. 651, 666 (1884): "In a republican government, like ours, . . . political [840] power is reposed in representatives of the entire body of the people."

In one sense it is true that "the people of each State retained their separate political identities," post, at 849, for the Constitution takes care both to preserve the States and to make use of their identities and structures at various points in organizing the federal union. It does not at all follow from this that the sole political identity of an American is with the State of his or her residence. It denies the dual character of the Federal Government which is its very foundation to assert that the people of the United States do not have a political identity as well, one independent of, though consistent with, their identity as citizens of the State of their residence. Cf. post, at 848-850. It must be recognized that "`[f]or all the great purposes for which the Federal government was formed, we are one people, with one common country.' " Shapiro v. Thompson, 394 U. S. 618, 630 (1969) (quoting Passenger Cases, 7 How. 283, 492 (1849) (Taney, C. J., dissenting); see Crandall v. Nevada, 6 Wall. 35, 43 (1868) ("The people of these United States constitute one nation" and "have a government in which all of them are deeply interested").

It might be objected that because the States ratified the Constitution, the people can delegate power only through the States or by acting in their capacities as citizens of particular States. See post, at 846. But in McCulloch v. Maryland, the Court set forth its authoritative rejection of this idea:

"The Convention which framed the constitution was indeed elected by the State legislatures. But the instrument . . . was submitted to the people. . . . It is true, they assembled in their several States—and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass. Of consequence, when they act, they act in their States. But [841] the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the State governments." 4 Wheat., at 403.

The political identity of the entire people of the Union is reinforced by the proposition, which I take to be beyond dispute, that, though limited as to its objects, the National Government is, and must be, controlled by the people without collateral interference by the States. McCulloch affirmed this proposition as well, when the Court rejected the suggestion that States could interfere with federal powers. "This was not intended by the American people. They did not design to make their government dependent on the States." Id., at 432. The States have no power, reserved or otherwise, over the exercise of federal authority within its proper sphere. See id., at 430 (where there is an attempt at "usurpation of a power which the people of a single State cannot give," there can be no question whether the power "has been surrendered" by the people of a single State because "[t]he right never existed"). That the States may not invade the sphere of federal sovereignty is as incontestable, in my view, as the corollary proposition that the Federal Government must be held within the boundaries of its own power when it intrudes upon matters reserved to the States. See United States v. Lopez, ante, p. 549.

Of course, because the Framers recognized that state power and identity were essential parts of the federal balance, see The Federalist No. 39, the Constitution is solicitous of the prerogatives of the States, even in an otherwise sovereign federal province. The Constitution uses state boundaries to fix the size of congressional delegations, Art. I, § 2, cl. 3, ensures that each State shall have at least one representative, ibid., grants States certain powers over the times, places, and manner of federal elections (subject to congressional revision), Art. I, § 4, cl. 1, requires that when the President is elected by the House of Representatives, the delegations [842] from each State have one vote, Art. II, § 1, cl. 3, and Amdt. 12, and allows States to appoint electors for the President, Art. II, § 1, cl. 2. Nothing in the Constitution or The Federalist Papers, however, supports the idea of state interference with the most basic relation between the National Government and its citizens, the selection of legislative representatives. Indeed, even though the Constitution uses the qualifications for voters of the most numerous branch of the States' own legislatures to set the qualifications of federal electors, Art. I, § 2, cl. 1, when these electors vote, we have recognized that they act in a federal capacity and exercise a federal right. Addressing this principle in Ex parte Yarbrough the Court stated as follows: "[T]he right to vote for a member of Congress" is an "office . . . created by that Constitution, and by that alone. . . . It is not true, therefore, that electors for members of Congress owe their right to vote to the State law in any sense which makes the exercise of the right to depend exclusively on the law of the State." 110 U. S., at 663-664. We made the same point in United States v. Classic, 313 U. S. 299, 315 (1941), when we said: "[T]he right of qualified voters within a state to cast their ballots and have them counted at Congressional elections . . . is a right secured by the Constitution" and "is secured against the action of individuals as well as of states."

The federal character of congressional elections flows from the political reality that our National Government is republican in form and that national citizenship has privileges and immunities protected from state abridgment by the force of the Constitution itself. Even before the passage of the Fourteenth Amendment, the latter proposition was given expression in Crandall v. Nevada where the Court recognized the right of the Federal Government to call "any or all of its citizens to aid in its service, as members of the Congress, of the courts, of the executive departments, and to fill all its other offices," and further recognized that "this right cannot be made to depend upon the pleasure of a State over whose [843] territory they must pass to reach the point where these services must be rendered." 6 Wall., at 43. And without reference to the Privileges and Immunities Clause, the rights of national citizenship were upheld again in United States v. Cruikshank, 92 U. S. 542, 552 (1876), where the Court said: "The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for any thing else connected with the powers or the duties of the national government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States. The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances." Cf. Hague v. Committee for Industrial Organization, 307 U. S. 496, 513 (1939) (opinion of Roberts, J., joined by Black, J., and joined in relevant part by Hughes, C. J.) ("Citizenship of the United States would be little better than a name if it did not carry with it the right to discuss national legislation and the benefits, advantages, and opportunities to accrue to citizens therefrom").

In the Slaughter-House Cases, 16 Wall. 36, 78-80 (1873), the Court was careful to hold that federal citizenship in and of itself suffices for the assertion of rights under the Constitution, rights that stem from sources other than the States. Though the Slaughter-House Cases interpreted the Privileges and Immunities Clause of the Fourteenth Amendment, its view of the origins of federal citizenship was not confined to that source. Referring to these rights of national dimension and origin the Court observed: "But lest it should be said that no such privileges and immunities are to be found if those we have been considering are excluded, we venture to suggest some which owe their existence to the Federal government, its National character, its Constitution, or its laws." Id., at 79. Later cases only reinforced the idea that there are such incidents of national citizenship. See Ex [844] parte Yarbrough, supra; Terral v. Burke Constr. Co., 257 U. S. 529 (1922); United States v. Classic, supra; United States v. Guest, 383 U. S. 745 (1966); Shapiro v. Thompson, 394 U. S. 618 (1969). Federal privileges and immunities may seem limited in their formulation by comparison with the expansive definition given to the privileges and immunities attributed to state citizenship, see Slaughter-House Cases, supra, at 78; Hague, supra, at 520 (opinion of Stone, J.), but that federal rights flow to the people of the United States by virtue of national citizenship is beyond dispute.

Not the least of the incongruities in the position advanced by Arkansas is the proposition, necessary to its case, that it can burden the rights of resident voters in federal elections by reason of the manner in which they earlier had exercised it. If the majority of the voters had been successful in selecting a candidate, they would be penalized from exercising that same right in the future. Quite apart from any First Amendment concerns, see Williams v. Rhodes, 393 U. S. 23, 30 (1968); Anderson v. Celebrezze, 460 U. S. 780, 786-788 (1983), neither the law nor federal theory allows a State to burden the exercise of federal rights in this manner. See Terral v. Burke Constr. Co., supra, at 532; Shapiro v. Thompson, supra, at 629-631. Indeed, as one of the "right[s] of the citizen[s] of this great country, protected by implied guarantees of its Constitution," the Court identified the right "`to come to the seat of government . . . to share its offices, to engage in administering its functions.' " Slaughter-House Cases, supra, at 79 (quoting Crandall v. Nevada, 6 Wall., at 44). This observation serves to illustrate the extent of the State's attempted interference with the federal right to vote (and the derivative right to serve if elected by majority vote) in a congressional election, rights that do not derive from the state power in the first instance but that belong to the voter in his or her capacity as a citizen of the United States.

It is maintained by our dissenting colleagues that the State of Arkansas seeks nothing more than to grant its people [845] surer control over the National Government, a control, it is said, that will be enhanced by the law at issue here. The arguments for term limitations (or ballot restrictions having the same effect) are not lacking in force; but the issue, as all of us must acknowledge, is not the efficacy of those measures but whether they have a legitimate source, given their origin in the enactments of a single State. There can be no doubt, if we are to respect the republican origins of the Nation and preserve its federal character, that there exists a federal right of citizenship, a relationship between the people of the Nation and their National Government, with which the States may not interfere. Because the Arkansas enactment intrudes upon this federal domain, it exceeds the boundaries of the Constitution.

Justice Thomas, with whom The Chief Justice, Justice O'Connor, and Justice Scalia join, dissenting.

It is ironic that the Court bases today's decision on the right of the people to "choose whom they please to govern them." See ante, at 783, 793, 795, 819. Under our Constitution, there is only one State whose people have the right to "choose whom they please" to represent Arkansas in Congress. The Court holds, however, that neither the elected legislature of that State nor the people themselves (acting by ballot initiative) may prescribe any qualifications for those representatives. The majority therefore defends the right of the people of Arkansas to "choose whom they please to govern them" by invalidating a provision that won nearly 60% of the votes cast in a direct election and that carried every congressional district in the State.

I dissent. Nothing in the Constitution deprives the people of each State of the power to prescribe eligibility requirements for the candidates who seek to represent them in Congress. The Constitution is simply silent on this question. And where the Constitution is silent, it raises no bar to action by the States or the people.

[846] I

Because the majority fundamentally misunderstands the notion of "reserved" powers, I start with some first principles. Contrary to the majority's suggestion, the people of the States need not point to any affirmative grant of power in the Constitution in order to prescribe qualifications for their representatives in Congress, or to authorize their elected state legislators to do so.

A

Our system of government rests on one overriding principle: All power stems from the consent of the people. To phrase the principle in this way, however, is to be imprecise about something important to the notion of "reserved" powers. The ultimate source of the Constitution's authority is the consent of the people of each individual State, not the consent of the undifferentiated people of the Nation as a whole.

The ratification procedure erected by Article VII makes this point clear. The Constitution took effect once it had been ratified by the people gathered in convention in nine different States. But the Constitution went into effect only "between the States so ratifying the same," Art. VII; it did not bind the people of North Carolina until they had accepted it. In Madison's words, the popular consent upon which the Constitution's authority rests was "given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong." The Federalist No. 39, p. 243 (C. Rossiter ed. 1961) (hereinafter The Federalist). Accord, 3 Debates in the Several State Conventions on the Adoption of the Federal Constitution 94 (J. Elliot 2d ed. 1876) (hereinafter Elliot) (remarks of James Madison at the Virginia Convention).^[53]

[847] When they adopted the Federal Constitution, of course, the people of each State surrendered some of their authority to the United States (and hence to entities accountable to the people of other States as well as to themselves). They affirmatively deprived their States of certain powers, see, e. g., Art. I, § 10, and they affirmatively conferred certain powers upon the Federal Government, see, e. g., Art. I, § 8. Because the people of the several States are the only true source of power, however, the Federal Government enjoys no authority beyond what the Constitution confers: The Federal Government's powers are limited and enumerated. In the words of Justice Black: "The United States is entirely a creature of the Constitution. Its power and authority have no other source." Reid v. Covert, 354 U. S. 1, 5-6 (1957) (plurality opinion) (footnote omitted).

In each State, the remainder of the people's powers— "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States," Amdt. 10—are either delegated to the state government or retained by the people. The Federal Constitution does not specify which of these two possibilities obtains; it is up to the various state constitutions to declare which powers the people of each State have delegated to their state government. As far as [848] the Federal Constitution is concerned, then, the States can exercise all powers that the Constitution does not withhold from them. The Federal Government and the States thus face different default rules: Where the Constitution is silent about the exercise of a particular power—that is, where the Constitution does not speak either expressly or by necessary implication—the Federal Government lacks that power and the States enjoy it.

These basic principles are enshrined in the Tenth Amendment, which declares that all powers neither delegated to the Federal Government nor prohibited to the States "are reserved to the States respectively, or to the people." With this careful last phrase, the Amendment avoids taking any position on the division of power between the state governments and the people of the States: It is up to the people of each State to determine which "reserved" powers their state government may exercise. But the Amendment does make clear that powers reside at the state level except where the Constitution removes them from that level. All powers that the Constitution neither delegates to the Federal Government nor prohibits to the States are controlled by the people of each State.

To be sure, when the Tenth Amendment uses the phrase "the people," it does not specify whether it is referring to the people of each State or the people of the Nation as a whole. But the latter interpretation would make the Amendment pointless: There would have been no reason to provide that where the Constitution is silent about whether a particular power resides at the state level, it might or might not do so. In addition, it would make no sense to speak of powers as being reserved to the undifferentiated people of the Nation as a whole, because the Constitution does not contemplate that those people will either exercise power or delegate it. The Constitution simply does not recognize any mechanism for action by the undifferentiated people of the Nation. Thus, the amendment provision of Article [849] V calls for amendments to be ratified not by a convention of the national people, but by conventions of the people in each State or by the state legislatures elected by those people. Likewise, the Constitution calls for Members of Congress to be chosen State by State, rather than in nationwide elections. Even the selection of the President—surely the most national of national figures—is accomplished by an electoral college made up of delegates chosen by the various States, and candidates can lose a Presidential election despite winning a majority of the votes cast in the Nation as a whole. See also Art. II, § 1, cl. 3 (providing that when no candidate secures a majority of electoral votes, the election of the President is thrown into the House of Representatives, where "the Votes shall be taken by States, the Representatives from each State having one Vote"); Amdt. 12 (same).

In short, the notion of popular sovereignty that undergirds the Constitution does not erase state boundaries, but rather tracks them. The people of each State obviously did trust their fate to the people of the several States when they consented to the Constitution; not only did they empower the governmental institutions of the United States, but they also agreed to be bound by constitutional amendments that they themselves refused to ratify. See Art. V (providing that proposed amendments shall take effect upon ratification by three-quarters of the States). At the same time, however, the people of each State retained their separate political identities. As Chief Justice Marshall put it,"[n]o political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass." McCulloch v. Maryland, 4 Wheat. 316, 403 (1819).^[54]

[850] Any ambiguity in the Tenth Amendment's use of the phrase "the people" is cleared up by the body of the Constitution itself. Article I begins by providing that the Congress of the United States enjoys "[a]ll legislative Powers herein granted," § 1, and goes on to give a careful enumeration of Congress' powers, § 8. It then concludes by enumerating certain powers that are prohibited to the States. The import of this structure is the same as the import of the Tenth Amendment: If we are to invalidate Arkansas' Amendment 73, we must point to something in the Federal Constitution that deprives the people of Arkansas of the power to enact such measures.

B

The majority disagrees that it bears this burden. But its arguments are unpersuasive.

1

The majority begins by announcing an enormous and untenable limitation on the principle expressed by the Tenth Amendment. According to the majority, the States possess only those powers that the Constitution affirmatively grants to them or that they enjoyed before the Constitution was adopted; the Tenth Amendment "could only `reserve' that [851] which existed before." Ante, at 802. From the fact that the States had not previously enjoyed any powers over the particular institutions of the Federal Government established by the Constitution,<sup>[55]</sup> the majority derives a rule precisely opposite to the one that the Amendment actually prescribes: "`[T]he states can exercise no powers whatsoever, which exclusively spring out of the existence of the national government, which the constitution does not delegate to them.' " Ibid. (quoting 1 J. Story, Commentaries on the Constitution of the United States § 627 (3d ed. 1858)).

The majority's essential logic is that the state governments could not "reserve" any powers that they did not control at the time the Constitution was drafted. But it was not the state governments that were doing the reserving. The Constitution derives its authority instead from the consent of the people of the States. Given the fundamental principle that all governmental powers stem from the people of the States, it would simply be incoherent to assert that the people of the States could not reserve any powers that they had not previously controlled.

The Tenth Amendment's use of the word "reserved" does not help the majority's position. If someone says that the power to use a particular facility is reserved to some group, he is not saying anything about whether that group has previously used the facility. He is merely saying that the people [852] who control the facility have designated that group as the entity with authority to use it. The Tenth Amendment is similar: The people of the States, from whom all governmental powers stem, have specified that all powers not prohibited to the States by the Federal Constitution are reserved "to the States respectively, or to the people."

The majority is therefore quite wrong to conclude that the people of the States cannot authorize their state governments to exercise any powers that were unknown to the States when the Federal Constitution was drafted. Indeed, the majority's position frustrates the apparent purpose of the Amendment's final phrase. The Amendment does not preempt any limitations on state power found in the state constitutions, as it might have done if it simply had said that the powers not delegated to the Federal Government are reserved to the States. But the Amendment also does not prevent the people of the States from amending their state constitutions to remove limitations that were in effect when the Federal Constitution and the Bill of Rights were ratified.

In an effort to defend its position, the majority points to language in Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 549 (1985), which it takes to indicate that the Tenth Amendment covers only "the original powers of [state] sovereignty." Ante, at 802. But Garcia dealt with an entirely different issue: the extent to which principles of state sovereignty implicit in our federal system curtail Congress' authority to exercise its enumerated powers. When we are asked to decide whether a congressional statute that appears to have been authorized by Article I is nonetheless unconstitutional because it invades a protected sphere of state sovereignty, it may well be appropriate for us to inquire into what we have called the "traditional aspects of state sovereignty." See National League of Cities v. Usery, 426 U. S. 833, 841, 849 (1976); see also New York v. United States, 505 U. S. 144, 156-157 (1992). The question [853] raised by the present case, however, is not whether any principle of state sovereignty implicit in the Tenth Amendment bars congressional action that Article I appears to authorize, but rather whether Article I bars state action that it does not appear to forbid. The principle necessary to answer this question is express on the Tenth Amendment's face: Unless the Federal Constitution affirmatively prohibits an action by the States or the people, it raises no bar to such action.

The majority also seeks support for its view of the Tenth Amendment in McCulloch v. Maryland, 4 Wheat. 316 (1819). See ante, at 802. But this effort is misplaced. McCulloch did make clear that a power need not be "expressly" delegated to the United States or prohibited to the States in order to fall outside the Tenth Amendment's reservation; delegations and prohibitions can also arise by necessary implication.^[56] True to the text of the Tenth Amendment, however, McCulloch indicated that all powers as to which the Constitution does not speak (whether expressly or by necessary implication) are "reserved" to the state level. Thus, in its only discussion of the Tenth Amendment, McCulloch observed that the Amendment "leav[es] the question, whether the particular power which may become the subject of contest has been delegated to the one government, or prohibited to the other, to depend on a fair construction of the whole [Constitution]." 4 Wheat., at 406. McCulloch did not qualify this observation by indicating that the question also turned on whether the States had enjoyed the power before the framing. To the contrary, McCulloch seemed to assume that the people had "conferred on the general government the power contained in the constitution, and on the States the whole residuum of power." Id., at 410.

The structure of McCulloch `s analysis also refutes the majority's position. The question before the Court was [854] whether the State of Maryland could tax the Bank of the United States, which Congress had created in an effort to accomplish objects entrusted to it by the Constitution. Chief Justice Marshall's opinion began by upholding the federal statute incorporating the bank. Id. , at 400-425. It then held that the Constitution affirmatively prohibited Maryland's tax on the bank created by this statute. Id., at 425-437. The Court relied principally on concepts that it deemed inherent in the Supremacy Clause of Article VI, which declares that "[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof, . . . shall be the supreme Law of the Land . . . ." In the Court's view, when a power has been "delegated to the United States by the Constitution," Amdt. 10, the Supremacy Clause forbids a State to "retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry [that power] into execution." McCulloch, 4 Wheat., at 436. Thus, the Court concluded that the very nature of state taxation on the bank's operations was "incompatible with, and repugnant to," the federal statute creating the bank. See id., at 425.

For the past 175 years, McCulloch has been understood to rest on the proposition that the Constitution affirmatively barred Maryland from imposing its tax on the Bank's operations. See, e. g., Osborn v. Bank of United States, 9 Wheat. 738, 859-868 (1824) (reaffirming McCulloch `s conclusion that by operation of the Supremacy Clause, the federal statute incorporating the bank impliedly pre-empted state laws attempting to tax the bank's operations); Maryland v. Louisiana, 451 U. S. 725, 746 (1981) (citing McCulloch for the proposition that the Supremacy Clause deprives the States of the power to pass laws that conflict with federal statutes); see also North Dakota v. United States, 495 U. S. 423, 434 (1990) (plurality opinion) (citing McCulloch for the proposition that state laws may violate the Supremacy Clause when they "regulate the Government directly or discriminate against [855] it").^[57] For the majority, however, McCulloch apparently turned on the fact that before the Constitution was adopted, the States had possessed no power to tax the instrumentalities of the governmental institutions that the Constitution created. This understanding of McCulloch makes most of Chief Justice Marshall's opinion irrelevant; according to the majority, there was no need to inquire into whether federal law deprived Maryland of the power in question, because the power could not fall into the category of "reserved" powers anyway.^[58]

[856] Despite the majority's citation of Garcia and McCulloch, the only true support for its view of the Tenth Amendment comes from Joseph Story's 1833 treatise on constitutional law. See 2 J. Story, Commentaries on the Constitution of the United States §§ 623-628. Justice Story was a brilliant and accomplished man, and one cannot casually dismiss his views. On the other hand, he was not a member of the Founding generation, and his Commentaries on the Constitution were written a half century after the framing. Rather than representing the original understanding of the Constitution, they represent only his own understanding. In a range of cases concerning the federal/state relation, moreover, this Court has deemed positions taken in Story's commentaries to be more nationalist than the Constitution warrants. Compare, e. g., id., §§ 1063-1069 (arguing that the Commerce Clause deprives the States of the power to regulate any commerce within Congress' reach), with Cooley v. Board of Wardens of Port of Philadelphia ex rel. Soc. for Relief of Distressed Pilots, 12 How. 299 (1852) (holding that Congress' Commerce Clause powers are not exclusive). See also 1 Life and Letters of Joseph Story 296 (W. Story ed. 1851) (extract of manuscript written by Story) ("I hold it to be a maxim, which should never be lost sight of by a great statesman, that the Government of the United States is [857] intrinsically too weak, and the powers of the State Governments too strong"). In this case too, Story's position that the only powers reserved to the States are those that the States enjoyed before the framing conflicts with both the plain language of the Tenth Amendment and the underlying theory of the Constitution.

2

The majority also sketches out what may be an alternative (and narrower) argument. Again citing Story, the majority suggests that it would be inconsistent with the notion of "national sovereignty" for the States or the people of the States to have any reserved powers over the selection of Members of Congress. See ante, at 803, 805. The majority apparently reaches this conclusion in two steps. First, it asserts that because Congress as a whole is an institution of the National Government, the individual Members of Congress "owe primary allegiance not to the people of a State, but to the people of the Nation." See ante, at 803. Second, it concludes that because each Member of Congress has a nationwide constituency once he takes office, it would be inconsistent with the Framers' scheme to let a single State prescribe qualifications for him. See ante, at 803-804, 837-838.

Political scientists can debate about who commands the "primary allegiance" of Members of Congress once they reach Washington. From the framing to the present, however, the selection of the Representatives and Senators from each State has been left entirely to the people of that State or to their state legislature. See Art. I, § 2, cl. 1 (providing that Members of the House of Representatives are chosen "by the People of the several States"); Art. I, § 3, cl. 1 (originally providing that the Senators from each State are "chosen by the Legislature thereof"); Amdt. 17 (amending § 3 to provide that the Senators from each State are "elected by the people thereof"). The very name "congress" suggests a [858] coming together of representatives from distinct entities.^[59] In keeping with the complexity of our federal system, once the representatives chosen by the people of each State assemble in Congress, they form a national body and are beyond the control of the individual States until the next election. But the selection of representatives in Congress is indisputably an act of the people of each State, not some abstract people of the Nation as a whole.

The concurring opinion suggests that this cannot be so, because it is the Federal Constitution that guarantees the right of the people of each State (so long as they are qualified electors under state law) to take part in choosing the Members of Congress from that State. See ante, at 842. But the presence of a federally guaranteed right hardly means that the selection of those representatives constitutes "the exercise of federal authority." See ante, at 841. When the people of Georgia pick their representatives in Congress, they are acting as the people of Georgia, not as the corporate agents for the undifferentiated people of the Nation as a whole. See In re Green, 134 U. S. 377, 379 (1890) ("Although [Presidential] electors are appointed and act under and pursuant to the Constitution of the United States, they are no more officers or agents of the United States than are the members of the state legislatures when acting as electors of federal senators, or the people of the States when acting as electors of representatives in Congress"). The concurring opinion protests that the exercise of "reserved" powers in the area of congressional elections would constitute "state interference with the most basic relation between the National [859] Government and its citizens, the selection of legislative representatives." See ante, at 842. But when one strips away its abstractions, the concurring opinion is simply saying that the people of Arkansas cannot be permitted to inject themselves into the process by which they themselves select Arkansas' representatives in Congress.

The concurring opinion attempts to defend this surprising proposition by pointing out that Americans are "citizens of the United States" as well as "of the State wherein they reside," Amdt. 14, § 1, and that national citizenship (particularly after the ratification of the Fourteenth Amendment) "has privileges and immunities protected from state abridgment by the force of the Constitution itself," ante, at 842. These facts are indeed "beyond dispute," ante, at 844, but they do not contradict anything that I have said. Although the United States obviously is a Nation, and although it obviously has citizens, the Constitution does not call for Members of Congress to be elected by the undifferentiated national citizenry; indeed, it does not recognize any mechanism at all (such as a national referendum) for action by the undifferentiated people of the Nation as a whole. See supra, at 848— 849. Even at the level of national politics, then, there always remains a meaningful distinction between someone who is a citizen of the United States and of Georgia and someone who is a citizen of the United States and of Massachusetts. The Georgia citizen who is unaware of this distinction will have it pointed out to him as soon as he tries to vote in a Massachusetts congressional election.

In short, while the majority is correct that the Framers expected the selection process to create a "direct link" between Members of the House of Representatives and the people, ante, at 803, the link was between the Representatives from each State and the people of that State; the people of Georgia have no say over whom the people of Massachusetts select to represent them in Congress. This arrangement [860] must baffle the majority,^[60] whose understanding of Congress would surely fit more comfortably within a system of nationwide elections. But the fact remains that when it comes to the selection of Members of Congress, the people of each State have retained their independent political identity. As a result, there is absolutely nothing strange about the notion that the people of the States or their state legislatures possess "reserved" powers in this area.

The majority seeks support from the Constitution's specification that Members of Congress "shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States." Art. I, § 6, cl. 1; see ante, at 804. But the fact that Members of Congress draw a federal salary once they have assembled hardly means that the people of the States lack reserved powers over the selection of their representatives. Indeed, the historical evidence about the compensation provision suggests that the States' reserved powers may even extend beyond the selection stage. The majority itself indicates that if the Constitution had made no provision for congressional compensation, this topic would have been "left to state legislatures." Ante, at 809; accord, 1 Farrand 215-216 (remarks of James Madison and George Mason); id., at 219, n. *. Likewise, Madison specifically indicated that even with the compensation provision in place, the individual States still [861] enjoyed the reserved power to supplement the federal salary. 3 id., at 315 (remarks at the Virginia ratifying convention).

As for the fact that a State has no reserved power to establish qualifications for the office of President, see ante, at 803-804, it surely need not follow that a State has no reserved power to establish qualifications for the Members of Congress who represent the people of that State. Because powers are reserved to the States "respectively," it is clear that no State may legislate for another State: Even though the Arkansas Legislature enjoys the reserved power to pass a minimum-wage law for Arkansas, it has no power to pass a minimum-wage law for Vermont. For the same reason, Arkansas may not decree that only Arkansas citizens are eligible to be President of the United States; the selection of the President is not up to Arkansas alone, and Arkansas can no more prescribe the qualifications for that office than it can set the qualifications for Members of Congress from Florida. But none of this suggests that Arkansas cannot set qualifications for Members of Congress from Arkansas.

In fact, the Constitution's treatment of Presidential elections actively contradicts the majority's position. While the individual States have no "reserved" power to set qualifications for the office of President, we have long understood that they do have the power (as far as the Federal Constitution is concerned) to set qualifications for their Presidential electors—the delegates that each State selects to represent it in the electoral college that actually chooses the Nation's chief executive. Even respondents do not dispute that the States may establish qualifications for their delegates to the electoral college, as long as those qualifications pass muster under other constitutional provisions (primarily the First and Fourteenth Amendments). See Williams v. Rhodes, 393 U. S. 23, 29 (1968); McPherson v. Blacker, 146 U. S. 1, 27-36 (1892). As the majority cannot argue that the Constitution [862] affirmatively grants this power,^[61] the power must be one that is "reserved" to the States. It necessarily follows that the majority's understanding of the Tenth Amendment is incorrect, for the position of Presidential elector surely "`spring[s] out of the existence of the national government.' " See ante, at 802.

3

In a final effort to deny that the people of the States enjoy "reserved" powers over the selection of their representatives in Congress, the majority suggests that the Constitution expressly delegates to the States certain powers over congressional elections. See ante, at 805. Such delegations of power, the majority argues, would be superfluous if the people of the States enjoyed reserved powers in this area.

Only one constitutional provision—the Times, Places and Manner Clause of Article I, § 4—even arguably supports the majority's suggestion. It reads:

"The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."

Contrary to the majority's assumption, however, this Clause does not delegate any authority to the States. Instead, it simply imposes a duty upon them. The majority gets it exactly right: By specifying that the state legislatures "shall" prescribe the details necessary to hold congressional elections, the Clause "expressly requires action by the States." [863] See ante, at 804. This command meshes with one of the principal purposes of Congress' "make or alter" power: to ensure that the States hold congressional elections in the first place, so that Congress continues to exist. As one reporter summarized a speech made by John Jay at the New York ratifying convention:

"[E]very government was imperfect, unless it had a power of preserving itself. Suppose that, by design or accident, the states should neglect to appoint repre- sentatives; certainly there should be some constitutional remedy for this evil. The obvious meaning of the paragraph was, that, if this neglect should take place, Congress should have power, by law, to support the government, and prevent the dissolution of the Union. [Jay] believed this was the design of the federal Convention." 2 Elliot 326 (emphasis in original).^[62]

Constitutional provisions that impose affirmative duties on the States are hardly inconsistent with the notion of reserved powers.

[864] Of course, the second part of the Times, Places and Manner Clause does grant a power rather than impose a duty. As its contrasting uses of the words "shall" and "may" confirm, however, the Clause grants power exclusively to Congress, not to the States. If the Clause did not exist at all, the States would still be able to prescribe the times, places, and manner of holding congressional elections; the deletion of the provision would simply deprive Congress of the power to override these state regulations.

The majority also mentions Article II, § 1, cl. 2: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of [Presidential] Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress . . . ." But this Clause has nothing to do with congressional elections, and in any event it, too, imposes an affirmative obligation on the States. In fact, some such bare bones provision was essential in order to coordinate the creation of the electoral college. As mentioned above, moreover, it is uncontested that the States enjoy the reserved power to specify qualifications for the Presidential electors who are chosen pursuant to this Clause. See supra, at 861-862.

Respondent Thornton seeks to buttress the majority's position with Article I, § 2, cl. 1, which provides:

"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." According to respondent Thornton, this provision "grants States authority to prescribe the qualifications of [voters]" in congressional elections. Brief for Respondent Congressman Ray Thornton 4. If anything, however, the Clause limits the power that the States would otherwise enjoy. Though it does leave States with the ability to control who may vote [865] in congressional elections, it has the effect of restricting their authority to establish special requirements that do not apply in elections for the state legislature.

Our case law interpreting the Clause affirmatively supports the view that the States enjoy reserved powers over congressional elections. We have treated the Clause as a one-way ratchet: While the requirements for voting in congressional elections cannot be more onerous than the requirements for voting in elections for the most numerous branch of the state legislature, they can be less so. See Tashjian v. Republican Party of Conn., 479 U. S. 208, 225— 229 (1986). If this interpretation of the Clause is correct, it means that even with the Clause in place, States still have partial freedom to set special voting requirements for congressional elections. As this power is not granted in Article I, it must be among the "reserved" powers.

II

I take it to be established, then, that the people of Arkansas do enjoy "reserved" powers over the selection of their representatives in Congress. Purporting to exercise those reserved powers, they have agreed among themselves that the candidates covered by § 3 of Amendment 73—those whom they have already elected to three or more terms in the House of Representatives or to two or more terms in the Senate—should not be eligible to appear on the ballot for reelection, but should nonetheless be returned to Congress if enough voters are sufficiently enthusiastic about their candidacy to write in their names. Whatever one might think of the wisdom of this arrangement, we may not override the decision of the people of Arkansas unless something in the Federal Constitution deprives them of the power to enact such measures.

The majority settles on "the Qualifications Clauses" as the constitutional provisions that Amendment 73 violates. See ante, at 806. Because I do not read those provisions to impose [866] any unstated prohibitions on the States, it is unnecessary for me to decide whether the majority is correct to identify Arkansas' ballot-access restriction with laws fixing true term limits or otherwise prescribing "qualifications" for congressional office. As I discuss in Part A below, the Qualifications Clauses are merely straightforward recitations of the minimum eligibility requirements that the Framers thought it essential for every Member of Congress to meet. They restrict state power only in that they prevent the States from abolishing all eligibility requirements for membership in Congress.

Because the text of the Qualifications Clauses does not support its position, the majority turns instead to its vision of the democratic principles that animated the Framers. But the majority's analysis goes to a question that is not before us: whether Congress has the power to prescribe qualifications for its own members. As I discuss in Part B, the democratic principles that contributed to the Framers' decision to withhold this power from Congress do not prove that the Framers also deprived the people of the States of their reserved authority to set eligibility requirements for their own representatives.

In Part C, I review the majority's more specific historical evidence. To the extent that they bear on this case, the records of the Philadelphia Convention affirmatively support my unwillingness to find hidden meaning in the Qualifications Clauses, while the surviving records from the ratification debates help neither side. As for the post ratification period, five States supplemented the constitutional disqualifications in their very first election laws. The historical evidence thus refutes any notion that the Qualifications Clauses were generally understood to be exclusive. Yet the majority must establish just such an understanding in order to justify its position that the Clauses impose unstated prohibitions on the States and the people. In my view, the historical evidence is simply inadequate to warrant the majority's [867] conclusion that the Qualifications Clauses mean anything more than what they say.

A

The provisions that are generally known as the Qualifications Clauses read as follows:

"No Person shall be a Representative who shall not have attained to the age of twenty five 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." Art. I, § 2, cl. 2.

"No Person shall be a Senator who shall not have attained to the Age of thirty 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." Art. I, § 3,cl. 3.

Later in Article I, the "Ineligibility Clause" imposes another nationwide disqualification from congressional office: "[N]o Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office." § 6, cl.2.

The majority is quite correct that the "negative phrasing" of these Clauses has little relevance. See ante, at 792, n. 8. The Qualifications Clauses would mean the same thing had they been enacted in the form that the Philadelphia Convention referred them to the Committee of Style:

"Every Member of the House of Representatives shall be of the age of twenty-five years at least; shall have been a citizen of the United States for at least seven years before his election; and shall be, at the time of his election, an inhabitant of the State in which he shall be chosen." 2 Farrand 565.

See also id., at 567 (same phrasing for Senate Qualifications Clause). But these different formulations—whether negative or affirmative—merely establish minimum qualifications. [868] They are quite different from an exclusive formulation, such as the following:

"Every Person who shall have attained to the age of twenty five Years, and been seven Years a Citizen of the United States, and who shall, when elected, be an Inhabitant of that State in which he shall be chosen, shall be eligible to be a Representative."

At least on their face, then, the Qualifications Clauses do nothing to prohibit the people of a State from establishing additional eligibility requirements for their own representatives.

Joseph Story thought that such a prohibition was nonetheless implicit in the constitutional list of qualifications, because "[f]rom the very nature of such a provision, the affirmation of these qualifications would seem to imply a negative of all others." 1 Commentaries on the Constitution of the United States § 624 (1833); see also ante, at 793, n.9. This argument rests on the maxim expressio unius rest exclusion alterius. When the Framers decided which qualifications to include in the Constitution, they also decided not to include any other qualifications in the Constitution. In Story's view, it would conflict with this latter decision for the people of the individual States to decide, as a matter of state law, that they would like their own representatives in Congress to meet additional eligibility requirements.

To spell out the logic underlying this argument is to expose its weakness. Even if one were willing to ignore the distinction between requirements enshrined in the Constitution and other requirements that the Framers were content to leave within the reach of ordinary law, Story's application of the expressio unius maxim takes no account of federalism. At most, the specification of certain nationwide disqualifications in the Constitution implies the negation of other nationwide disqualifications; it does not imply that individual States or their people are barred from adopting their own [869] disqualifications on a state-by-state basis. Thus, the one delegate to the Philadelphia Convention who voiced anything approaching Story's argument said only that a recital of qualifications in the Constitution would imply that Congress lacked any qualification-setting power. See 2 Farrand 123 (remarks of John Dickinson); cf. ante, at 793, n. 9, and 815-816, n. 27.

The Qualifications Clauses do prevent the individual States from abolishing all eligibility requirements for Congress. This restriction on state power reflects the fact that when the people of one State send immature, disloyal, or unknowledgeable representatives to Congress, they jeopardize not only their own interests but also the interests of the people of other States. Because Congress wields power over all the States, the people of each State need some guarantee that the legislators elected by the people of other States will meet minimum standards of competence. The Qualifications Clauses provide that guarantee: They list the requirements that the Framers considered essential to protect the competence of the National Legislature.^[63]

If the people of a State decide that they would like their representatives to possess additional qualifications, however, they have done nothing to frustrate the policy behind the Qualifications Clauses. Anyone who possesses all of the constitutional qualifications, plus some qualifications required by state law, still has all of the federal qualifications. [870] Accordingly, the fact that the Constitution specifies certain qualifications that the Framers deemed necessary to protect the competence of the National Legislature does not imply that it strips the people of the individual States of the power to protect their own interests by adding other requirements for their own representatives.

The people of other States could legitimately complain if the people of Arkansas decide, in a particular election, to send a 6-year-old to Congress. But the Constitution gives the people of other States no basis to complain if the people of Arkansas elect a freshman representative in preference to a long-term incumbent. That being the case, it is hard to see why the rights of the people of other States have been violated when the people of Arkansas decide to enact a more general disqualification of long-term incumbents. Such a disqualification certainly is subject to scrutiny under other constitutional provisions, such as the First and Fourteenth Amendments. But as long as the candidate whom they send to Congress meets the constitutional age, citizenship, and inhabitancy requirements, the people of Arkansas have not violated the Qualifications Clauses.

This conclusion is buttressed by our reluctance to read constitutional provisions to preclude state power by negative implication. The very structure of the Constitution counsels such hesitation. After all, § 10 of Article I contains a brief list of express prohibitions on the States. Cf. Cipollone v. Liggett Group, Inc., 505 U. S. 504, 517-519 (1992) (Stevens, J.) (applying the expressio unius maxim to conclude that Congress' inclusion of an express pre-emption clause in a federal statute implies that state laws beyond the reach of that clause are not pre-empted); Nevada v. Hall, 440 U. S. 410, 425 (1979) (Stevens, J.) (suggesting that in light of the Tenth Amendment and the Constitution's express prohibitions on the States, "caution should be exercised before concluding that unstated limitations on state power were intended by the Framers"). Many of the prohibitions listed in [871] § 10, moreover, might have been thought to be implicit in other constitutional provisions or in the very nature of our federal system. Compare, e. g., Art. II, § 2, cl. 2 ("[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties"), and Art. I, § 8, cl. 5 ("The Congress shall have Power . . . [t]o coin Money"), with Art. I, § 10, cl. 1 ("No State shall enter into any Treaty" and "No State shall . . . coin Money"); see also Art. VI, cl. 2 (explicitly declaring that state law cannot override the Constitution). The fact that the Framers nonetheless made these prohibitions express confirms that one should not lightly read provisions like the Qualifications Clauses as implicit deprivations of state power. See generally Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 249 (1833).^[64]

The majority responds that "a patchwork of state qualifications" would "undermin[e] the uniformity and the national character that the Framers envisioned and sought to ensure." Ante, at 822. Yet the Framers thought it perfectly consistent with the "national character" of Congress for the Senators and Representatives from each State to be chosen by the legislature or the people of that State. The majority never explains why Congress' fundamental character permits this state-centered system, but nonetheless prohibits [872] the people of the States and their state legislatures from setting any eligibility requirements for the candidates who seek to represent them.

As for the majority's related assertion that the Framers intended qualification requirements to be uniform, this is a conclusion, not an argument. Indeed, it is a conclusion that the Qualifications Clauses themselves contradict. At the time of the framing, and for some years thereafter, the Clauses' citizenship requirements incorporated laws that varied from State to State. Thus, the Qualifications Clauses themselves made it possible that a person would be qualified to represent State A in Congress even though a similarly situated person would not be qualified to represent State B.

To understand this point requires some background. Before the Constitution was adopted, citizenship was controlled entirely by state law, and the different States established different criteria. See J. Kettner, Development of American Citizenship, 1608-1870, pp. 213-218 (1978). Even after the Constitution gave Congress the power to "establish an uniform Rule of Naturalization . . . throughout the United States," Art. I, § 8, cl. 4, Congress was under no obligation to do so, and the Framers surely expected state law to continue in full force unless and until Congress acted. Cf. Sturges v. Crowninshield, 4 Wheat. 122, 196 (1819) (so interpreting the other part of § 8, cl. 4, which empowers Congress to establish "uniform Laws on the subject of Bankruptcies").^[65] Accordingly, the constitutional requirement that [873] Members of Congress be United States citizens meant different things in different States. The very first contestedelection case in the House of Representatives, which involved the citizenship of a would-be Congressman from South Carolina, illustrates this principle. As Representative James Madison told his colleagues, "I take it to be a clear point, that we are to be guided, in our decision, by the laws and constitution of South Carolina, so far as they can guide us; and where the laws do not expressly guide us, we must be guided by principles of a general nature . . . ." Cases of Contested Elections in Congress 32 (M. Clarke & D. Hall eds. 1834) (reporting proceedings from May 22, 1789).

Even after Congress chose to exercise its power to prescribe a uniform route to naturalization, the durational element of the citizenship requirement in the Qualifications Clauses ensured that variances in state law would continue to matter. Thus, in 1794 the Senate refused to seat Albert Gallatin because, owing to the individual peculiarities of the laws of the two relevant States, he had not been a citizen for the required nine years. Id., at 859-862, 867 (reporting proceedings from February 20 and 28, 1794).

Even if the Qualifications Clauses had not themselves incorporated nonuniform requirements, of course, there would still be no basis for the assertion of the plurality below that they mandate "uniformity in qualifications." See 316 Ark. 251, 265, 872 S. W. 2d 349, 356 (1994). The Clauses wholly omit the exclusivity provision that, according to both the plurality below and today's majority, was their central focus. In fact, neither the text nor the apparent purpose of the Qualifications Clauses does anything to refute Thomas Jefferson's elegant legal analysis:

[874] "Had the Constitution been silent, nobody can doubt but that the right to prescribe all the qualifications and disqualifications of those they would send to represent them, would have belonged to the State. So also the Constitution might have prescribed the whole, and excluded all others. It seems to have preferred the middle way. It has exercised the power in part, by declaring some disqualifications . . . . But it does not declare, itself, that the member shall not be a lunatic, a pauper, a convict of treason, of murder, of felony, or other infamous crime, or a non-resident of his district; nor does it prohibit to the State the power of declaring these, or any other disqualifications which its particular circumstances may call for; and these may be different in different States. Of course, then, by the tenth amendment, the power is reserved to the State." Letter to Joseph C. Cabell (Jan. 31, 1814), in 14 Writings of Thomas Jefferson 82-83 (A. Lipscomb ed. 1904).^[66]

B

Although the Qualifications Clauses neither state nor imply the prohibition that it finds in them, the majority infers from the Framers' "democratic principles" that the Clauses must have been generally understood to preclude the people of the States and their state legislatures from prescribing any additional qualifications for their representatives in Congress. But the majority's evidence on this point establishes only two more modest propositions: (1) the Framers did not want the Federal Constitution itself to impose a [875] broad set of disqualifications for congressional office, and (2) the Framers did not want the Federal Congress to be able to supplement the few disqualifications that the Constitution does set forth. The logical conclusion is simply that the Framers did not want the people of the States and their state legislatures to be constrained by too many qualifications imposed at the national level. The evidence does not support the majority's more sweeping conclusion that the Framers intended to bar the people of the States and their state legislatures from adopting additional eligibility requirements to help narrow their own choices.

I agree with the majority that Congress has no power to prescribe qualifications for its own Members. This fact, however, does not show that the Qualifications Clauses contain a hidden exclusivity provision. The reason for Congress' incapacity is not that the Qualifications Clauses deprive Congress of the authority to set qualifications, but rather that nothing in the Constitution grants Congress this power. In the absence of such a grant, Congress may not act. But deciding whether the Constitution denies the qualification-setting power to the States and the people of the States requires a fundamentally different legal analysis.

Despite the majority's claims to the contrary, see ante, at 796-797, n. 12, this explanation for Congress' incapacity to supplement the Qualifications Clauses is perfectly consistent with the reasoning of Powell v. McCormack, 395 U. S. 486 (1969). Powell concerned the scope of Article I, § 5, which provides that "[e]ach House [of Congress] shall be the Judge of the Elections, Returns and Qualifications of its own Members." As the majority itself recognizes, "[t]he principal issue [in Powell ] was whether the power granted to each House in Art. I, § 5, . . . includes the power to impose qualifications other than those set forth in the text of the Constitution." Ante, at 788. Contrary to the majority's suggestion, then, the critical question in Powell was whether § 5 conferred a qualification-setting power—not whether the Qualifications [876] Clauses took it away. Compare Powell, supra, at 519 (describing the question before the Court as "what power the Constitution confers upon the House through Art. I, § 5"), and 536 (describing the Court's task as "determining the meaning of Art. I, § 5") with ante, at 789, and 792, n. 8 (suggesting that Powell held that the Qualifications Clauses "limit the power of the House to impose additional qualifications"). See also Buckley v. Valeo, 424 U. S. 1, 133 (1976) (taking my view of Powell ).

Powell `s analysis confirms this point. After summarizing a large quantity of historical material bearing on the original understanding of what it meant for a legislature to act as "the Judge" of the qualifications of its members, see 395 U. S., at 521-531, Powell went on to stress that the Philadelphia Convention specifically rejected proposals to grant Congress the power to pass laws prescribing additional qualifications for its Members, and that the Convention rejected these proposals on the very same day that it approved the precursor of § 5. See id., at 533-536. Given this historical evidence, the Powell Court refused to read § 5 as empowering the House to prescribe such additional qualifications in its capacity as "Judge." And if nothing in the Constitution gave the House this power, it inevitably followed that the House could not exercise it. Despite the majority's claims, then, Powell itself rested on the proposition that the institutions of the Federal Government enjoy only the powers that are granted to them. See also ante, at 793, n. 9 (describing the Qualifications Clauses merely as an independent basis for the result reached in Powell ).^[67]

[877] The fact that the Framers did not grant a qualificationsetting power to Congress does not imply that they wanted to bar its exercise at the state level. One reason why the Framers decided not to let Congress prescribe the qualifications of its own Members was that incumbents could have used this power to perpetuate themselves or their ilk in office. As Madison pointed out at the Philadelphia Convention, Members of Congress would have an obvious conflict of interest if they could determine who may run against them. 2 Farrand 250; see also ante, at 793-794, n. 10. But neither the people of the States nor the state legislatures would labor under the same conflict of interest when prescribing qualifications for Members of Congress, and so the Framers would have had to use a different calculus in determining whether to deprive them of this power.

As the majority argues, democratic principles also contributed to the Framers' decision to withhold the qualificationsetting power from Congress. But the majority is wrong to suggest that the same principles must also have led the Framers to deny this power to the people of the States and the state legislatures. In particular, it simply is not true that "the source of the qualification is of little moment in assessing the qualification's restrictive impact." Ante, at 820. There is a world of difference between a self-imposed constraint and a constraint imposed from above.

Congressional power over qualifications would have enabled the representatives from some States, acting collectively in the National Legislature, to prevent the people of another State from electing their preferred candidates. The John Wilkes episode in 18th-century England illustrates the problems that might result. As the majority mentions, Wilkes' district repeatedly elected him to the House of Commons, only to have a majority of the representatives of other [878] districts frustrate their will by voting to exclude him. See ante, at 790. Americans who remembered these events might well have wanted to prevent the National Legislature from fettering the choices of the people of any individual State (for the House of Representatives) or their state legislators (for the Senate).

Yet this is simply to say that qualifications should not be set at the national level for offices whose occupants are selected at the state level. The majority never identifies the democratic principles that would have been violated if a state legislature, in the days before the Constitution was amended to provide for the direct election of Senators, had imposed some limits of its own on the field of candidates that it would consider for appointment.^[68] Likewise, the majority does not explain why democratic principles prohibit the people of a State from adopting additional eligibility requirements to help narrow their choices among candidates seeking to represent them in the House of Representatives. Indeed, the invocation of democratic principles to invalidate Amendment 73 seems particularly difficult in the present case, because Amendment 73 remains fully within the control of the people of Arkansas. If they wanted to repeal it (despite the 20-point margin by which they enacted it less than three years ago), they could do so by a simple majority vote. See Ark. Const., Amdt. 7.

The majority appears to believe that restrictions on eligibility for office are inherently undemocratic. But the Qualifications Clauses themselves prove that the Framers did not share this view; eligibility requirements to which the people of the States consent are perfectly consistent with the Framers' [879] scheme. In fact, we have described "the authority of the people of the States to determine the qualifications of their most important government officials" as "an authority that lies at the heart of representative government." Gregory v. Ashcroft, 501 U. S. 452, 463 (1991) (internal quotation marks omitted) (refusing to read federal law to preclude States from imposing a mandatory retirement age on state judges who are subject to periodic retention elections). When the people of a State themselves decide to restrict the field of candidates whom they are willing to send to Washington as their representatives, they simply have not violated the principle that "the people should choose whom they please to govern them." See 2 Elliot 257 (remarks of Alexander Hamilton at the New York Convention).

At one point, the majority suggests that the principle identified by Hamilton encompasses not only the electorate's right to choose, but also "the egalitarian concept that the opportunity to be elected [is] open to all." See ante, at 794; see also ante, at 819-820. To the extent that the second idea has any content independent of the first, the majority apparently would read the Qualifications Clauses to create a personal right to be a candidate for Congress, and then to set that right above the authority of the people of the States to prescribe eligibility requirements for public office. But we have never suggested that "the opportunity to be elected" is open even to those whom the voters have decided not to elect. On that rationale, a candidate might have a right to appear on the ballot in the general election even though he lost in the primary. But see Storer v. Brown, 415 U. S. 724, 726, n. 16 (1974); see also Bullock v. Carter, 405 U. S. 134, 142-143 (1972) (rejecting the proposition that there is any fundamental right to be a candidate, separate and apart from the electorate's right to vote). Thus, the majority ultimately concedes that its "egalitarian concept" derives entirely from the electorate's right to choose. See ante, at 794, n. 11; see also ante, at 819 (deriving the "egalitarian [880] ideal" from the proposition that the Qualifications Clauses do not unduly "`fetter the judgment . . . of the people' " (quoting The Federalist No. 57, at 351)). If the latter is not violated, then neither is the former.

In seeking ratification of the Constitution, James Madison did assert that "[u]nder these reasonable limitations [set out in the House Qualifications Clause], the door of this part of the federal government is open to merit of every description . . . ." The Federalist No. 52, at 326. The majority stresses this assertion, and others to the same effect, in support of its "egalitarian concept." See ante, at 794, 819-820, and n. 30. But there is no reason to interpret these statements as anything more than claims that the Constitution itself imposes relatively few disqualifications for congressional office.^[69] One should not lightly assume that Madison [881] and his colleagues, who were attempting to win support at the state level for the new Constitution, were proclaiming the inability of the people of the States or their state legislatures to prescribe any eligibility requirements for their own Representatives or Senators. Instead, they were merely responding to the charge that the Constitution was undemocratic and would lead to aristocracies in office. Cf. ante, at 791 (referring to "the antifederalist charge that the new Constitution favored the wealthy and well born"). The statement that the qualifications imposed in the Constitution are not unduly restrictive hardly implies that the Constitution withdrew the power of the people of each State to prescribe additional eligibility requirements for their own Representatives if they so desired.

In fact, the authority to narrow the field of candidates in this way may be part and parcel of the right to elect Members of Congress. That is, the right to choose may include the right to winnow. See Hills, A Defense of State Constitutional Limits on Federal Congressional Terms, 53 U. Pitt. L. Rev. 97, 107-109 (1991).

To appreciate this point, it is useful to consider the Constitution as it existed before the Seventeenth Amendment was adopted in 1913. The Framers' scheme called for the legislature of each State to choose the Senators from that State. Art. I, § 3, cl. 1. The majority offers no reason to believe that state legislatures could not adopt prospective rules to guide themselves in carrying out this responsibility; not only is there no express language in the Constitution barring legislatures from passing laws to narrow their choices, but there also is absolutely no basis for inferring such a prohibition. Imagine the worst-case scenario: a state legislature, wishing [882] 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.

[883] I would go further, for I see nothing in the Constitution that precludes the people of each State (if they so desire) from authorizing their elected state legislators to prescribe qualifications on their behalf. If the people of a State decide that they do not trust their state legislature with this power, they are free to amend their state constitution to withdraw it. This arrangement seems perfectly consistent with the Framers' scheme. From the time of the framing until after the Civil War, for example, the Federal Constitution did not bar state governments from abridging the freedom of speech or the freedom of the press, even when those freedoms were being exercised in connection with congressional elections. It was the state constitutions that determined whether state governments could silence the supporters of disfavored congressional candidates, just as it was the state constitutions that determined whether the States could persecute people who held disfavored religious beliefs or could expropriate property without providing just compensation. It would not be at all odd if the state constitutions also determined whether the state legislature could pass qualifications statutes.

But one need not agree with me that the people of each State may delegate their qualification-setting power in order to uphold Arkansas' Amendment 73. Amendment 73 is not the act of a state legislature; it is the act of the people of Arkansas, adopted at a direct election and inserted into the State Constitution. The majority never explains why giving effect to the people's decision would violate the "democratic principles" that undergird the Constitution. Instead, the majority's discussion of democratic principles is directed entirely to attacking eligibility requirements imposed on the people of a State by an entity other than themselves.

The majority protests that any distinction between the people of the States and the state legislatures is "untenable" and "astonishing." See ante, at 809, n. 19. In the limited area of congressional elections, however, the Framers themselves [884] drew this distinction: They specifically provided for Senators to be chosen by the state legislatures and for Representatives to be chosen by the people. In the context of congressional elections, the Framers obviously saw a meaningful difference between direct action by the people of each State and action by their state legislatures.

Thus, even if one believed that the Framers intended to bar state legislatures from adopting qualifications laws that restrict the people's choices, it would not follow that the people themselves are precluded from agreeing upon eligibility requirements to help narrow their own choices. To be sure, if the Qualifications Clauses were exclusive, they would bar all additional qualifications, whether adopted by popular initiative or by statute. But the majority simply assumes that if state legislatures are barred from prescribing qualifications, it must be because the Qualifications Clauses are exclusive. It would strain the text of the Constitution far less to locate the bar in Article I, § 2, and the Seventeenth Amendment instead: One could plausibly maintain that qualification requirements imposed by state legislatures violate the constitutional provisions entrusting the selection of Members of Congress to the people of the States, even while one acknowledges that qualification requirements imposed by the people themselves are perfectly constitutional. The majority never justifies its conclusion that "democratic principles" require it to reject even this intermediate position.

C

In addition to its arguments about democratic principles, the majority asserts that more specific historical evidence supports its view that the Framers did not intend to permit supplementation of the Qualifications Clauses. But when one focuses on the distinction between congressional power to add qualifications for congressional office and the power of the people or their state legislatures to add such qualifications, one realizes that this assertion has little basis.

[885] In particular, the detail with which the majority recites the historical evidence set forth in Powell v. McCormack, 395 U. S. 486 (1969), should not obscure the fact that this evidence has no bearing on the question now before the Court. As the majority ultimately concedes, see ante, at 792-793, 796, 798, it does not establish "the Framers' intent that the qualifications in the Constitution be fixed and exclusive," ante, at 790; it shows only that the Framers did not intend Congress to be able to enact qualifications laws.^[70] If anything, [886] the solidity of the evidence supporting Powell `s view that Congress lacks the power to supplement the constitutional disqualifications merely highlights the weakness of the majority's evidence that the States and the people of the States also lack this power.

1

To the extent that the records from the Philadelphia Convention itself shed light on this case, they tend to hurt the majority's case. The only evidence that directly bears on the question now before the Court comes from the Committee of Detail, a five-member body that the Convention charged with the crucial task of drafting a Constitution to reflect the decisions that the Convention had reached during its first two months of work. A document that Max Farrand described as "[a]n early, perhaps the first, draft of the committee's work" survived among the papers of George Mason. 1 Farrand xxiii, n. 36. The draft is in the handwriting of [887] Edmund Randolph, the chairman of the Committee, with emendations in the hand of John Rutledge, another member of the Committee. As Professor Farrand noted, "[e]ach item in this document . . . is either checked off or crossed out, showing that it was used in the preparation of subsequent drafts." 2 id., at 137, n. 6; see also W. Meigs, The Growth of the Constitution in the Federal Convention of 1787, pp. I—IX (1900) (providing a facsimile of the document).

The document is an extensive outline of the Constitution. Its treatment of the National Legislature is divided into two parts, one for the "House of Delegates" and one for the Senate. The Qualifications Clause for the House of Delegates originally read as follows: "The qualifications of a delegate shall be the age of twenty five years at least. and citizenship: and any person possessing these qualifications may be elected except [blank space]." Id., at II (emphasis added). The drafter(s) of this language apparently contemplated that the Committee might want to insert some exceptions to the exclusivity provision. But rather than simply deleting the word "except"—as it might have done if it had decided to have no exceptions at all to the exclusivity provision—the Committee deleted the exclusivity provision itself. In the document that has come down to us, all the words after the colon are crossed out. Ibid.

The majority speculates that the exclusivity provision may have been deleted as superfluous. See ante, at 815-816, n. 27.^[71] But the same draft that contained the exclusivity language in the House Qualifications Clause contained no [888] such language in the Senate Qualifications Clause. See 2 Farrand 141. Thus, the draft appears to reflect a deliberate judgment to distinguish between the House qualifications and the Senate qualifications, and to make only the former exclusive. If so, then the deletion of the exclusivity provision indicates that the Committee expected neither list of qualifications to be exclusive.

The majority responds that the absence of any exclusivity provision in the Committee's draft of the Senate Qualifications Clause merely reflected the fact that "senators, unlike Representatives, would not be chosen by popular election." Ante, at 815, n. 27. I am perfectly prepared to accept this explanation: The drafter(s) may well have thought that state legislatures should be prohibited from constricting the people's choices for the House of Representatives, but that no exclusivity provision was necessary on the Senate side because state legislatures would already have unfettered control over the appointment of Senators. To accept this explanation, however, is to acknowledge that the exclusivity provision in the Committee's draft of the House Qualifications Clause was not thought to be mere surplusage. It is also to acknowledge that the Senate Qualifications Clause in the Committee's draft—"the qualification of a senator shall be the age of 25 years at least: citizenship in the united states: and property to the amount of [blank space]," 2 Farrand 141—did not carry any implicit connotation of exclusivity. In short, the majority's own explanation for the difference between the two Qualifications Clauses in the Committee's draft is fundamentally at odds with the expressio unius argument on which the majority rests its holding.

2

Unable to glean from the Philadelphia Convention any direct evidence that helps its position, the majority seeks signs of the Framers' unstated intent in the Framers' comments about four other constitutional provisions. See ante, at 808— [889] 811 (citing Art. I, § 2, cl. 1; § 4, cl. 1; § 5, cl. 1; and § 6, cl. 1). The majority infers from these provisions that the Framers wanted "to minimize the possibility of state interference with federal elections." Ante, at 808. But even if the majority's reading of its evidence were correct, the most that one could infer is that the Framers did not want state legislatures to be able to prescribe qualifications that would narrow the people's choices. See supra, at 883-888. However wary the Framers might have been of permitting state legislatures to exercise such power, there is absolutely no reason to believe that the Framers feared letting the people themselves exercise this power. Cf. The Federalist No. 52, at 326 (Madison) ("It cannot be feared that the people of the States will alter this [electoral-qualification] part of their constitutions in such a manner as to abridge the rights secured to them by the federal Constitution").

In any event, none of the provisions cited by the majority is inconsistent with state power to add qualifications for congressional office. First, the majority cites the constitutional requirement that congressional salaries be "ascertained by Law, and paid out of the Treasury of the United States." Art. I, § 6, cl. 1. Like the Qualifications Clauses themselves, however, the salary provision can be seen as simply another means of protecting the competence of the National Legislature. As reflected in the majority's own evidence, see ante, at 809-810; see also 1 Farrand 373 (remarks of James Madison), one of the recurring themes of the debate over this provision was that if congressional compensation were left up to the States, parsimonious States might reduce salaries so low that only incapable people would be willing to serve in Congress.

As the majority stresses, some delegates to the Philadelphia Convention did argue that leaving congressional compensation up to the various States would give Members of Congress "an improper dependence" upon the States. Id., at 216 (remarks of James Madison); ante, at 809-810. These [890] delegates presumably did not want state legislatures to be able to tell the Members of Congress from their State, "Vote against Bill A or we will slash your salary"; such a power would approximate a power of recall, which the Framers denied to the States when they specified the terms of Members of Congress. The Framers may well have thought that state power over salary, like state power to recall, would be inconsistent with the notion that Congress was a national legislature once it assembled. But state power over initial eligibility requirements does not raise the same concerns: It was perfectly coherent for the Framers to leave selection matters to the state level while providing for Members of Congress to draw a federal salary once they took office. Thus, the Compensation Clause seems wholly irrelevant; contrary to the majority's suggestion, see ante, at 811, n. 21, it does not address elections at all.

Second, the majority gives passing mention to the Elector-Qualifications Clause of Article I, § 2, which specifies that in each State, the voters in House elections "shall have the qualifications requisite for Electors of the most numerous Branch of the State Legislature." But the records of the Philadelphia Convention provide no evidence for the majority's assertion that the purpose of this Clause was "to prevent discrimination against federal electors." See ante, at 808.^[72] [891] In fact, the Clause may simply have been a natural concomitant of one of the Framers' most famous decisions. At the Convention, there was considerable debate about whether Members of the House of Representatives should be selected by the state legislatures or directly by the voters of each State. Taken as a whole, the first Clause of Article I, § 2— including the elector-qualifications provision—implements the Framers' decision. It specifies that the Representatives from each State are to be chosen by the State's voters (that is, the people eligible to participate in elections for the most numerous branch of the state legislature).

Third, the majority emphasizes that under Article I, § 5, "[e]ach House [of Congress] shall be the Judge of the Elections, Returns and Qualifications of its own Members." See ante, at 804, 811, 822. There was no recorded discussion of this provision in the Philadelphia Convention, and it appears simply to adopt the practice of England's Parliament. See n. 18, supra. According to the majority, however, § 5 implies [892] that the Framers could not have intended state law ever to "provide the standard for judging a Member's eligibility." Ante, at 812.

My conclusion that States may prescribe eligibility requirements for their Members of Congress does not necessarily mean that the term "Qualifications," as used in Article I, § 5, includes such state-imposed requirements. One surely could read the term simply to refer back to the requirements that the Framers had just listed in the Qualifications Clauses, and not to encompass whatever requirements States might add on their own. See Nixon v. United States, 506 U. S. 224, 237 (1993) (dictum) (asserting that the context of § 5 demonstrates that "the word `[q]ualifications' . . . was of a precise, limited nature" and referred only to the qualifications previously "set forth in Art. I, § 2"). The Framers had deemed the constitutional qualifications essential to protect the competence of Congress, and hence the national interest. It is quite plausible that the Framers would have wanted each House to make sure that its Members possessed these qualifications, but would have left it to the States to enforce whatever qualifications were imposed at the state level to protect state interests.

But even if this understanding of § 5 is incorrect, I see nothing odd in the notion that a House of Congress might have to consider state law in judging the "Qualifications" of its Members. In fact, § 5 itself refutes the majority's argument. Because it generally is state law that determines what is necessary to win an election and whether any particular ballot is valid, each House of Congress clearly must look to state law in judging the "Elections" and "Returns" of its Members. It would hardly be strange if each House had to do precisely the same thing in judging "Qualifications." Indeed, even on the majority's understanding of the Constitution, at the time of the framing all "Qualifications" questions that turned on issues of citizenship would have been governed by state law. See supra, at 872-873.

[893] More generally, there is no basis for the majority's assertion that the Framers would not have charged "federal tribunals" with the task of "judging . . . questions concerning rights which depend on state law." See ante, at 812. Cases involving questions of federal law hardly exhaust the categories of cases that the Framers authorized the federal courts to decide. See Art. III, § 2, cl. 1. The founding generation, moreover, seemed to assign relatively little importance to the constitutional grant of jurisdiction over "all Cases . . . arising under this Constitution, the Laws of the United States, and Treaties made . . . under their Authority." Ibid. The First Congress never even implemented this jurisdictional grant at the trial level; it was not until 1875 that Congress "revolutionized the concept of the federal judiciary" by giving federal courts broad jurisdiction over suits arising under federal law. See P. Bator, D. Meltzer, P. Mishkin, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 962 (3d ed. 1988). By contrast, the founding generation thought it important to implement immediately the constitutional grant of diversity jurisdiction, in which the rules of decision generally come entirely from state law. See Judiciary Act of 1789, 1 Stat. 73, 78, 92; Erie R. Co. v. Tompkins, 304 U. S. 64, 77-80 (1938).

The fourth and final provision relied upon by the majority is the Clause giving Congress the power to override state regulations of "[t]he Times, Places and Manner of holding [congressional] Elections." Art. I, § 4, cl. 1. From the fact that the Framers gave Congress the power to "make or alter" these state rules of election procedure, the majority infers that the Framers would also have wanted Congress to enjoy override authority with respect to any matters of substance that were left to the States. See ante, at 810— 811. As Congress enjoys no "make or alter" powers in this area, the majority concludes that the Framers must not have thought that state legislatures would be able to enact qualifications laws.

[894] But the Framers provided for congressional override only where they trusted Congress more than the States. Even respondents acknowledge that "the primary reason" for the "make or alter" power was to enable Congress to ensure that States held elections in the first place. See Tr. of Oral Arg. 51; see also supra, at 863, and n. 10. The Framers did trust Congress more than the States when it came to preserving the Federal Government's own existence; to advance this interest, they had to give Congress the capacity to prescribe both the date and the mechanics of congressional elections. As discussed above, however, the Framers trusted the States more than Congress when it came to setting qualifications for Members of Congress. See supra, at 877. Indeed, the majority itself accepts this proposition. See ante, at 832 (acknowledging that the Framers were "particularly concerned" about congressional power to set qualifications).

To judge from comments made at the state ratifying conventions, Congress' "make or alter" power was designed to serve a coordination function in addition to ensuring that the States had at least rudimentary election laws. For instance, George Nicholas argued at the Virginia Convention that if regulation of the time of congressional elections had been left exclusively to the States, "there might have been as many times of choosing as there are States," and "such intervals might elapse between the first and last election, as to prevent there being a sufficient number to form a House." 9 Documentary History of the Ratification of the Constitution 920 (J. Kaminski and G. Saladino eds. 1990). For this reason too, if the National Legislature lacked the "make or alter" power, "it might happen that there should be no Congress[,] . . . and this might happen at a time when the most urgent business rendered their session necessary." Ibid.; cf. 2 Elliot 535 (remarks of Thomas McKean at the Pennsylvania ratifying convention) (defending § 4 on the ground that congressional elections should be "held on the same day throughout the United States, to prevent corruption or [895] undue influence"). Again, however, the desire to coordinate state election procedures did not require giving Congress power over qualifications laws.

The structure of the Constitution also undermines the majority's suggestion that it would have been bizarre for the Framers to give Congress supervisory authority over state time, place, and manner regulations but not over state qualifications laws. Although the Constitution does set forth a few nationwide disqualifications for the office of Presidential elector, see Art. II, § 1, cl. 2 ("no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector"), no one contends that these disqualifications implicitly prohibit the States from adding any other eligibility requirements; instead, Article II leaves the States free to establish qualifications for their delegates to the electoral college. See supra, at 861-862. Nothing in the Constitution, moreover, gives Congress any say over the additional eligibility requirements that the people of the States or their state legislatures may choose to set. Yet under Article II, "[t]he Congress may determine the Time of chusing the Electors . . . ." Art. II, § 1, cl. 4.

The majority thus creates an unwarranted divergence between Article I's provisions for the selection of Members of Congress and Article II's provisions for the selection of members of the electoral college. Properly understood, the treatment of congressional elections in Article I parallels the treatment of Presidential elections in Article II. Under Article I as under Article II, the States and the people of the States do enjoy the reserved power to establish substantive eligibility requirements for candidates, and Congress has no power to override these requirements. But just as Article II authorizes Congress to prescribe when the States must select their Presidential electors, so Article I gives Congress the ultimate authority over the times, places, and manner of holding congressional elections.

[896] The majority's only response is that my reading of the Constitution would permit States to use their qualificationsetting 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 [897] States to establish impossible qualifications for congressional office. Both the majority and I also agree that it is theoretically conceivable that a State might defy this proscription by erecting an impossible qualification. Whether Congress may use its "make or alter" power to override such laws turns entirely on how one reads the "make or alter" power; it has nothing to do with whether one believes that the Qualifications Clauses are exclusive.

It would not necessarily be unusual if the Framers had decided against using Congress' "make or alter" power to guard against state laws that disqualify everyone from service in the House. After all, although this power extended to the times and manner of selecting Senators as well as Representatives, it did not authorize Congress to pick the Senators from a State whose legislature defied its constitutional obligations and refused to appoint anyone. This does not mean that the States had no duty to appoint Senators, or that the States retained the power to destroy the Federal Government by the simple expedient of refusing to meet this duty. It merely means that the Framers did not place the remedy with Congress.^[73]

But the flaws in the majority's argument go deeper. Contrary to the majority's basic premise, Congress can nullify state laws that establish impossible qualifications. If a State actually holds an election and only afterwards purports to disqualify the winner for failure to meet an impossible condition, Congress certainly would not be bound by the purported disqualification. It is up to each House of Congress to judge the "[q]ualifications" of its Members for itself. See Art. I, § 5, cl. 1. Even if this task includes the responsibility of judging qualifications imposed by state law, see supra, at 892-893, Congress obviously would have not only [898] the power but the duty to treat the unconstitutional state law as a nullity. Thus, Congress could provide the appropriate remedy for the State's defiance, simply by seating the winner of the election.

It follows that the situation feared by the majority would arise only if the State refused to hold an election in the first place, on the ground that no candidate could meet the impossible qualification. But Congress unquestionably has the power to override such a refusal. Under the plain terms of § 4, Congress can make a regulation providing for the State to hold a congressional election at a particular time and place, and in a particular manner.^[74]

3

In discussing the ratification period, the majority stresses two principal data. One of these pieces of evidence is no evidence at all—literally. The majority devotes considerable space to the fact that the recorded ratification debates do not contain any affirmative statement that the States can supplement the constitutional qualifications. See ante, at 812-815. For the majority, this void is "compelling" evidence that "unquestionably reflects the Framers' common understanding that States lacked that power." Ante, at 812, 814. The majority reasons that delegates at several of the ratifying conventions attacked the Constitution for failing to require Members of Congress to rotate out of office.^[75] If [899] supporters of ratification had believed that the individual States could supplement the constitutional qualifications, the majority argues, they would have blunted these attacks by pointing out that rotation requirements could still be added State by State. See ante, at 814.

But the majority's argument cuts both ways. The recorded ratification debates also contain no affirmative statement that the States cannot supplement the constitutional qualifications. While ratification was being debated, the existing rule in America was that the States could prescribe eligibility requirements for their delegates to Congress, see n. 3, supra, even though the Articles of Confederation gave Congress itself no power to impose such qualifications. If [900] the Federal Constitution had been understood to deprive the States of this significant power, one might well have expected its opponents to seize on this point in arguing against ratification.

The fact is that arguments based on the absence of recorded debate at the ratification conventions are suspect, because the surviving records of those debates are fragmentary. We have no records at all of the debates in several of the conventions, 3 Documentary History of the Ratification of the Constitution 7 (M. Jensen ed. 1978), and only spotty the records from most of others, see ibid.; 1 id., at 34-35; 4 Elliot 342; Hutson, The Creation of the Constitution: The Integrity of the Documentary Record, 65 Texas L. Rev. 1, 21-23 (1986).

If one concedes that the absence of relevant records from the ratification debates is not strong evidence for either side, then the majority's only significant piece of evidence from the ratification period is The Federalist No. 52. Contrary to the majority's assertion, however, this essay simply does not talk about "the lack of state control over the qualifications of the elected," whether "explicitly" or otherwise. See ante, at 806.

It is true that The Federalist No. 52 contrasts the Constitution's treatment of the qualifications of voters in elections for the House of Representatives with its treatment of the qualifications of the Representatives themselves. As Madison noted, the Framers did not specify any uniform qualifications for the franchise in the Constitution; instead, they simply incorporated each State's rules about eligibility to vote in elections for the most numerous branch of the state legislature. By contrast, Madison continued, the Framers chose to impose some particular qualifications that all Members of the House had to satisfy. But while Madison did say that the qualifications of the elected were "more susceptible of uniformity" than the qualifications of electors, The Federalist No. 52, at 326, he did not say that the Constitution [901] prescribes anything but uniform minimum qualifications for congressmen. That, after all, is more than it does for congressional electors.

Nor do I see any reason to infer from The Federalist No. 52 that the Framers intended to deprive the States of the power to add to these minimum qualifications. Madison did note that the existing state constitutions defined the qualifications of "the elected"—a phrase that the essay used to refer to Members of Congress—"less carefully and properly" than they defined the qualifications of voters. But Madison could not possibly have been rebuking the States for setting unduly high qualifications for their representatives in Congress, because they actually had established only the sketchiest of qualifications. At the time that Madison wrote, the various state constitutions generally provided for the state legislature to appoint the State's delegates to the Federal Congress.^[76] Four State Constitutions had added a termlimits provision that tracked the one in the Articles of Confederation,^[77] and some of the Constitutions also specified that people who held certain salaried offices under the United States were ineligible to represent the State in Congress.^[78] But only two State Constitutions had prescribed any other [902] qualifications for delegates to Congress.^[79] In this context, when Madison wrote that the state constitutions defined the qualifications of Members of Congress "less carefully and properly" than they defined the qualifications of voters, he could only have meant that the existing state qualifications did not do enough to safeguard Congress' competence: The state constitutions had not adopted the age, citizenship, and inhabitancy requirements that the Framers considered essential. Madison's comments readily explain why the Framers did not merely incorporate the state qualifications for Congress. But they do not imply that the Framers intended to withdraw from the States the power to supplement the list of qualifications contained in the Federal Constitution.^[80]

Though The Federalist No. 52 did not address this question, one might wonder why the Qualifications Clauses did not simply incorporate the existing qualifications for members of the state legislatures (as opposed to delegates to Congress). Again, however, the Framers' failure to do so cannot be taken as an implicit criticism of the States for setting unduly high entrance barriers. To the contrary, the age and citizenship qualifications set out in the Federal Constitution are considerably higher than the corresponding qualifications contained in the state constitutions that were then in force. At the time, no state constitution required members of the lower house of the state legislature to be more than 21 years old, and only two required members of the upper house to be 30. See N. H. Const. of 1784, Pt. II, in 4 Thorpe 2460; S. C. Const. of 1778, Art. XII, in 6 Thorpe 3250. Many [903] States, moreover, permitted naturalized aliens to take seats in the state legislature within one or two years of becoming citizens. See Kettner, Development of American Citizenship, at 214-219.

The majority responds that at the time of the framing, most States imposed property qualifications on members of the state legislature. See ante, at 807-808, n. 18. But the fact that the Framers did not believe that a uniform minimum property requirement was necessary to protect the competence of Congress surely need not mean that the Framers intended to preclude States from setting their own property qualifications.

In fact, the constitutional text supports the contrary inference. As the majority observes, see ibid., and ante, at 825, n. 35, at the time of the framing some States also imposed religious qualifications on state legislators. The Framers evidently did not want States to impose such qualifications on federal legislators, for the Constitution specifically provides that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." Art. VI, cl. 3. Both the context^[81] and the plain language of the Clause show that it bars the States as well as the Federal Government from imposing religious disqualifications on federal offices. But the only reason for extending the Clause to the States would be to protect Senators and Representatives from state-imposed religious qualifications; I know of no one else who holds a "public Trust under the United States" yet who might be subject to state disqualifications. If the expressio unius maxim cuts in any direction in this case, then, it undermines the majority's position: The Framers' prohibition on state-imposed religious disqualifications [904] for Members of Congress suggests that other types of state-imposed disqualifications are permissible. See Rotunda, Rethinking Term Limits for Federal Legislators in Light of the Structure of the Constitution, 73 Ore. L. Rev. 561, 574 (1994).

4

More than a century ago, this Court was asked to invalidate a Michigan election law because it called for Presidential electors to be elected on a district-by-district basis rather than being chosen by "the State" as a whole. See Art. II, § 1, cl. 2. Conceding that the Constitution might be ambiguous on this score, the Court asserted that "where there is ambiguity or doubt, or where two views may well be entertained, contemporaneous and subsequent practical construction[s] are entitled to the greatest weight." McPherson v. Blacker, 146 U. S., at 27. The Court then described the district-based selection processes used in 2 of the 10 States that participated in the first Presidential election in 1788, 3 of the 15 States that participated in 1792, and 5 of the 16 States that participated in 1796. Id., at 29-31. Though acknowledging that in subsequent years "most of the States adopted the general ticket system," id., at 32, the Court nonetheless found this history "decisive" proof of the constitutionality of the district method, id., at 36. Thus, the Court resolved its doubts in favor of the state law, "the contemporaneous practical exposition of the Constitution being too strong and obstinate to be shaken . . . ." Id., at 27.

Here, too, state practice immediately after the ratification of the Constitution refutes the majority's suggestion that the Qualifications Clauses were commonly understood as being exclusive. Five States supplemented the constitutional disqualifications in their very first election laws, and the surviving records suggest that the legislatures of these States considered and rejected the interpretation of the Constitution that the majority adopts today.

[905] As the majority concedes, the first Virginia election law erected a property qualification for Virginia's contingent in the Federal House of Representatives. See Virginia Election Law (Nov. 20, 1788), in 2 Documentary History of the First Federal Elections, 1788-1790, pp. 293, 294 (G. DenBoer ed. 1984) (hereinafter First Federal Elections) (restricting possible candidates to "freeholder[s]"). What is more, while the Constitution merely requires representatives to be inhabitants of their State, the legislatures of five of the seven States that divided themselves into districts for House elections ^[82] added that representatives also had to be inhabitants of the district that elected them. Three of these States adopted durational residency requirements too, insisting that representatives have resided within their districts for at least a year (or, in one case, three years) before being elected.^[83]

[906] In an attempt to neutralize the significance of the district residency requirements, respondent Hill asserts that "there is no evidence that any state legislature focused, when it created these requirements, on the fact that it was adding to the constitutional qualifications." Brief for Respondents Bobbie E. Hill et al. 20. But this claim is simply false.

In Massachusetts, for instance, the legislature charged a committee with drafting a report on election methods. The fourth article of the resulting report called for the State to be divided into eight districts that would each elect one representative, but did not require that the representatives be residents of the districts that elected them. Joint Committee Report (Nov. 4, 1788), in 1 First Federal Elections 481. When the members of the State House of Representatives discussed this report, those who proposed adding a district residency requirement were met with the claim that the Federal Constitution barred the legislature from specifying additional qualifications. See Massachusetts Centinel (Nov. 8, 1788) (reporting proceedings), in 1 First Federal Elections 489. After "considerable debate," the House approved the committee's version of the fourth article by a vote of 89 to 72. Ibid. But the State Senate approved a district residency amendment, 1 First Federal Elections 502, and the House then voted to retain it, id., at 504.

Although we have no record of the legislative debates over Virginia's election law, a letter written by one of the members of the House of Delegates during the relevant period indicates that in that State, too, the legislature considered the possible constitutional objection to additional disqualifications. In that letter, Edward Carrington (an opponent of the district residency requirement) expressed his view that the requirement "may exceed the powers of the Assembly," [907] but acknowledged that there was "no prospect of its being struck out" because Federalists as well as Anti-Federalists at least professed to "think it right." 2 id., at 367 (letter from Carrington to Madison, Nov. 9-10, 1788). Carrington was correct about the views of his colleagues: By a vote of 80 to 32, the House of Delegates rejected a motion to delete the added qualifications, while a similar motion in the State Senate lost by a vote of 12 to 3. Id., at 287, 293.^[84]

The surviving records from Maryland and Georgia are less informative, but they, too, show that the legislatures of those States gave special attention to the district residency requirements that they enacted.^[85] Out of the five original [908] States that adopted district residency requirements, in fact, only in North Carolina were the records so poor that it is impossible to draw any inferences about whether the legislature gave careful attention to the implications of the requirement.^[86]

[909] The majority asserts that "state practice with respect to residency requirements does not necessarily indicate that States believed that they had a broad power to add restrictions," because the States "may simply have viewed district residency requirements as the necessary analog to state residency requirements." Ante, at 827, n. 41. This argument fails even on its own terms. If the States had considered district residency requirements necessary for the success of a district election system, but had agreed with the majority that the Constitution prohibited them from supplementing the constitutional list of qualifications, then they simply would have rejected the district system and used statewide elections. After all, the majority deems district residency requirements just as unconstitutional as other added qualifications. See ante, at 799.

The majority's argument also fails to account for the durational element of the residency requirements adopted in Georgia, North Carolina, and Virginia (and soon thereafter in Tennessee). These States obliged Congressmen not only to be district residents when elected but also to have been district residents for at least a year before then. See n. 31, supra.

Finally, the majority's argument cannot explain the election schemes of Maryland and Georgia. Though these States did divide themselves into congressional districts, they allowed every voter to vote for one candidate from each [910] district. See Georgia Election Law (Jan. 23, 1789), in 2 First Federal Elections 456, 457; Maryland Election Law (Dec. 22, 1788), in 2 First Federal Elections 136, 138. In other words, Maryland and Georgia imposed district residency requirements despite permitting every voter in the State to vote for every representative from the State. Neither of these States could possibly have seen district residency requirements as the "necessary analog" to anything; they imposed these requirements solely for their own sake.

The majority nonetheless suggests that the initial election laws adopted by the States actually support its position because the States did not enact very many disqualifications. See ante, at 826-827, n. 41. In this context, the majority alludes to the fact that no State imposed a religious qualification on federal legislators, even though New Hampshire continued to require state legislators to be Protestants and North Carolina imposed a similar requirement on people holding places of trust in the State's "civil department." See ante, at 826-827, n. 41, and 825, n. 35. But the majority concedes that "Article VI of the Federal Constitution . . . prohibited States from imposing similar qualifications on federal legislators." Ante, at 825, n. 35. As discussed above, the constitutional treatment of religious qualifications tends to undermine rather than support the majority's case. See supra, at 903-904.

The majority also points out that no State required its own federal representatives to rotate out of office after serving one or more terms. Ante, at 826. At the time of the framing, however, such requirements were increasingly disfavored on policy grounds. The advantages of incumbency were substantially fewer then than now, and turnover in office was naturally quite high. The perceived advantages of term limits were therefore smaller than they are today. But the perceived disadvantages were just as great: Term limits prevented the States or the people of the States from keeping good legislators in office, even if they wanted to do so. [911] See G. Wood, Creation of the American Republic, 1776-1787, p. 439 (1969).

It istrue that under the Articles of Confederation, four States had imposed term limits on their delegates to Congress. See ante, at 826. But three of these provisions added nothing to the limits in the Articles themselves, see Md. Const. of 1776, Form of Government, Art. XXVII (echoing Article of Confederation V), in 3 Thorpe 1695; N. H. Const. of 1784, Pt. II (same), in 4 Thorpe 2467; N. C. Const. of 1776, Art. XXXVII (similar), in 5 Thorpe 2793, and the other one contained only a minor variation on the provision in the Articles, see Pa. Const. of 1776, Frame of Government, § 11, in 5 Thorpe 3085. Indeed, though the majority says States that "many imposed term limits on state officers," ante, at 825-826, it appears that at the time of the framing only Pennsylvania imposed any restriction on the reelection of members of the state legislature, and Pennsylvania deleted this restriction when it adopted a new Constitution in 1790. Compare Pa. Const. of 1776, Frame of Government, § 8, in 5 Thorpe 3084, with Pa. Const. of 1790, in 5 Thorpe 3092-3103; cf. Va. Const. of 1776, Form of Government (perhaps imposing term limits on members of the upper house of the state legislature), in 7 Thorpe 3816. It seems likely, then, that the failure of any State to impose term limits on its senators and representatives simply reflected policy-based decisions against such restrictions.

The majority counters that the delegates at three state ratifying conventions—in Virginia, New York, and North Carolina—"proposed amendments that would have required rotation." Ante, at 813; cf. ante, at 826, and n. 40. But the amendments proposed by both the North Carolina Convention and the Virginia Convention would have imposed term limits only on the President, not on Members of Congress. See 4 Elliot 245 (North Carolina) ("[N]o person shall be capable of being President of the United States for more than eight years in any term of fifteen years"); 3 id., at 660 [912] (Virginia) (similar). If the majority is correct that these conventions also "voiced support for term limits for Members of Congress," see ante, at 826,^[87] then the evidence from these conventions supports my position rather than the majority's: the conventions deemed it necessary for the Constitution itself to impose term limits on the President (because no State could do that on its own), but they did not think it necessary for the Constitution to impose term limits on Members of Congress. This understanding at the Virginia and North Carolina conventions meshes with the election laws adopted by both States, which reflected the view that States could supplement the Qualifications Clauses. See supra, at 905, and n. 31, 909.^[88]

[913] If the majority can draw no support from state treatment of religious qualifications and rotation requirements, we are left only with state treatment of property qualifications. It is true that nine of the State Constitutions in effect at the time of the framing required members of the lower house of the state legislature to possess some property, see ante, at 823-824, n. 33, and that four of these Constitutions were revised shortly after the framing but continued to impose such requirements, see ante, at 824-825, and n. 35. Only one State, by contrast, established a property qualification for the Federal House of Representatives. But the fact that more States did not adopt congressional property qualifications does not mean that the Qualifications Clauses were commonly understood to be exclusive; there are a host of other explanations for the relative liberality of state election laws.^[89] And whatever the explanation, the fact remains that [914] five of the election laws enacted immediately after ratification of the Constitution imposed additional qualifications that would clearly be unconstitutional under today's holding. This history of state practice—which is every bit as strong as the history we deemed "decisive" in McPherson v. Blacker, 146 U. S., at 36—refutes the majority's position that the Qualifications Clauses were generally understood to include an unstated exclusivity provision.

5

The same is true of the final category of historical evidence discussed by the majority: controversies in the House and the Senate over seating candidates who were duly elected but who arguably failed to satisfy qualifications imposed by state law.

[915] As the majority concedes, "`congressional practice has been erratic' " and is of limited relevance anyway. Ante, at 819 (quoting Powell v. McCormack, 395 U. S., at 545). Actions taken by a single House of Congress in 1887 or in 1964 shed little light on the original understanding of the Constitution. Presumably for that reason, the majority puts its chief emphasis on the 1807 debate in the House of Representatives about whether to seat Maryland's William McCreery. See ante, at 816-818. I agree with the majority that this debate might lend some support to the majority's position if it had transpired as reported in Powell v. McCormack. See ante, at 816-817. But the Court's discussion— both in Powell and today—is misleading.

A Maryland statute dating from 1802 had created a district entitled to send two representatives to the House, one of whom had to be a resident of Baltimore County and the other of whom had to be a resident of Baltimore City. McCreery was elected to the Ninth Congress as a resident of Baltimore City. After his reelection to the Tenth Congress, however, his qualifications were challenged on the ground that because he divided his time between his summer estate in Baltimore County and his residence in Washington, D. C., he was no longer a resident of Baltimore City at all.

As the majority notes, a report of the House Committee of Elections recommended that McCreery be seated on the ground that state legislatures have no authority to add to the qualifications set forth in the Constitution. See 17 Annals of Cong. 871 (1807); ante, at 816-817. But the committee's submission of this initial report sparked a heated debate that spanned four days, with many speeches on both sides of the issue. See 17 Annals of Cong. 871-919, 927-947 (reporting proceedings from Nov. 12, 13, 16, and 18, 1807). Finally, a large majority of the House voted to recommit the report to the Committee of Elections. Id., at 950 (Nov. 19, 1807). The committee thereupon deleted all references to the [916] constitutional issue and issued a revised report that focused entirely on the factual question whether McCreery satisfied the state residency requirement. Id., at 1059-1061 (Dec. 7, 1807). After receiving the new report, the House seated McCreery with a resolution simply saying: "Resolved, That William McCreery is entitled to his seat in this House." Id., at 1237 (Dec. 24, 1807). By overwhelming majorities, the House rejected both a proposal to specify that McCreery possessed "the qualifications required by the law of Maryland," ibid., and a proposal to declare only that he was "duly qualified, agreeably to the constitution of the United States," id., at 1231. Far from supporting the majority's position, the McCreery episode merely demonstrates that the 10th House of Representatives was deeply divided over whether state legislatures may add to the qualifications set forth in the Constitution.^[90]

The majority needs more than that. The prohibition that today's majority enforces is found nowhere in the text of the Qualifications Clauses. In the absence of evidence that the Clauses nonetheless were generally understood at the time of the framing to imply such a prohibition, we may not use the Clauses to invalidate the decisions of a State or its people.

III

It is radical enough for the majority to hold that the Constitution implicitly precludes the people of the States from prescribing any eligibility requirements for the congressional [917] candidates who seek their votes. This holding, after all, does not stop with negating the term limits that many States have seen fit to impose on their Senators and Representatives.^[91] Today's decision also means that no State may disqualify congressional candidates whom a court has found to be mentally incompetent, see, e. g., Fla. Stat. §§ 97.041(2), 99.021(1)(a) (1991), who are currently in prison, see, e. g., Ill. Comp. Stat. Ann., ch. 10, §§ 5/3-5, 5/7-10, 5/10-5 (1993 and West Supp. 1995), or who have past vote-fraud convictions, see, e. g., Ga. Code Ann. §§ 21-2—2(25), 21-2—8 (1993 and Supp. 1994). Likewise, after today's decision, the people of each State must leave open the possibility that they will trust someone with their vote in Congress even though they do not trust him with a vote in the election for Congress. See, e. g., R. I. Gen. Laws § 17-14-1.2 (1988) (restricting candidacy to people "qualified to vote").

In order to invalidate § 3 of Amendment 73, however, the majority must go further. The bulk of the majority's analysis—like Part II of my dissent—addresses the issues that would be raised if Arkansas had prescribed "genuine, unadulterated, undiluted term limits." See Rotunda, 73 Ore. L. Rev., at 570. But as the parties have agreed, Amendment 73 does not actually create this kind of disqualification. See [918] Tr. of Oral Arg. 53-54; cf. ante, at 828. It does not say that covered candidates may not serve any more terms in Congress if reelected, and it does not indirectly achieve the same result by barring those candidates from seeking reelection. It says only that if they are to win reelection, they must do so by write-in votes.

One might think that this is a distinction without a difference. As the majority notes, "[t]he uncontested data submitted to the Arkansas Supreme Court" show that write-in candidates have won only six congressional elections in this century. Ante, at 830, n. 43. But while the data's accuracy is indeed "uncontested," petitioners filed an equally uncontested affidavit challenging the data's relevance. As political science professor James S. Fay swore to the Arkansas Supreme Court, "[m]ost write-in candidacies in the past have been waged by fringe candidates, with little public support and extremely low name identification." App. 201. To the best of Professor Fay's knowledge, in modern times only two incumbent Congressmen have ever sought reelection as write-in candidates. One of them was Dale Alford of Arkansas, who had first entered the House of Representatives by winning 51% of the vote as a write-in candidate in 1958; Alford then waged a write-in campaign for reelection in 1960, winning a landslide 83% of the vote against an opponent who enjoyed a place on the ballot. Id., at 201-202. The other incumbent write-in candidate was Philip J. Philbin of Massachusetts, who—despite losing his party primary and thus his spot on the ballot—won 27% of the vote in his unsuccessful write-in candidacy. See id. , at 203. According to Professor Fay, these results—coupled with other examples of successful write-in campaigns, such as Ross Perot's victory in North Dakota's 1992 Democratic Presidential primary—"demonstrate that when a write-in candidate is well-known and well-funded, it is quite possible for him or her to win an election." Ibid.

[919] The majority responds that whether "the Arkansas amendment has the likely effect of creating a qualification" is "simply irrelevant to our holding today." Ante, at 836. But the majority—which, after all, bases its holding on the asserted exclusivity of the Qualifications Clauses—never adequately explains how it can take this position and still reach its conclusion.

One possible explanation for why the actual effect of the Arkansas amendment might be irrelevant is that the Arkansas Supreme Court has already issued a binding determination of fact on this point. Thus, the majority notes that "the state court" has advised us that "there is nothing more than a faint glimmer of possibility that the excluded candidate will win." Ante, at 830. But the majority is referring to a mere plurality opinion, signed by only three of the seven justices who decided the case below. One of the two justices who concurred in the plurality's holding that Amendment 73 violates the Qualifications Clauses did write that "as a practical matter, the amendment would place term limits on service in the Congress," but he immediately followed this comment with the concession that write-in candidacies are not entirely hopeless; his point was simply that "as a practical matter, write-in candidates are at a distinct disadvantage." 316 Ark., at 276; 872 S. W. 2d, at 364 (Dudley, J., concurring in part and dissenting in part). As a result, the majority may rely upon the state court only for the proposition that Amendment 73 makes the specified candidates "distinct[ly]" worse off than they would be in its absence— an unassailable proposition that petitioners have conceded.

In the current posture of these cases, indeed, it would have been extremely irregular for the Arkansas Supreme Court to have gone any further. Disputed questions of fact, in Arkansas as elsewhere, generally are resolved at trial rather than on appeal from the entry of summary judgment. See [920] Ark. Rule Civ. Proc. 56.^[92] Accordingly, the majority explicitly disclaims any reliance on the state court's purported finding about the effect of Amendment 73. See ante, at 830, n. 44.

Instead, the majority emphasizes another purported conclusion of the Arkansas Supreme Court. As the majority notes, the plurality below asserted that "[t]he intent" of Amendment 73 was "to disqualify congressional incumbents from further service." 316 Ark., at 266, 872 S. W. 2d, at 357. According to the majority, "[w]e must, of course, accept the state court's view of the purpose of its own law: We are thus authoritatively informed that the sole purpose of § 3 of Amendment 73 was to attempt to achieve a result that is forbidden by the Federal Constitution." Ante, at 829.

I am not sure why the intent behind a law should affect our analysis under the Qualifications Clauses. If a law does not in fact add to the constitutional qualifications, the mistaken expectations of the people who enacted it would not seem to affect whether it violates the alleged exclusivity of those Clauses. But in any event, the majority is wrong about what "the state court" has told us. Even the plurality [921] below did not flatly assert that the desire to "disqualify" congressional incumbents was the sole purpose behind § 3 of Amendment 73. More important, neither of the justices who concurred in the plurality's holding said anything at all about the intent behind Amendment 73. As a result, we cannot attribute any findings on this issue to the Arkansas Supreme Court.

The majority suggests that this does not matter, because Amendment 73 itself says that it has the purpose of "evading the requirements of the Qualifications Clauses." See ante, at 831 (referring to the "avowed purpose" of Amendment 73). The majority bases this assertion on the amendment's preamble, which speaks of "limit[ing] the terms of elected officials." See ante, at 830. But this statement may be referring only to §§ 1 and 2 of Amendment 73, which impose true term limits on state officeholders. Even if the statement refers to § 3 as well, it may simply reflect the limiting effects that the drafters of the preamble expected to flow from what they perceived as the restoration of electoral competition to congressional races. See infra, at 924. In any event, inquiries into legislative intent are even more difficult than usual when the legislative body whose unified intent must be determined consists of 825,162 Arkansas voters.

The majority nonetheless thinks it clear that the goal of § 3 is "to prevent the election of incumbents." See ante, at 830, 836. In reaching this conclusion at the summaryjudgment stage, however, the majority has given short shrift to petitioners' contrary claim. Petitioners do not deny that § 3 of Amendment 73 intentionally handicaps a class of candidates, in the sense that it decreases their pre-existing electoral chances. But petitioners do deny that § 3 is intended to (or will in fact) "prevent" the covered candidates from winning reelection, or "disqualify" them from further service. One of petitioners' central arguments is that congressionally conferred advantages have artificially inflated the pre-existing electoral chances of the covered candidates, and [922] that Amendment 73 is merely designed to level the playing field on which challengers compete with them.

To understand this argument requires some background. Current federal law (enacted, of course, by congressional incumbents) confers numerous advantages on incumbents, and these advantages are widely thought to make it "significantly more difficult" for challengers to defeat them. Cf. ante, at 831. For instance, federal law gives incumbents enormous advantages in building name recognition and good will in their home districts. See, e. g., 39 U. S. C. § 3210 (permitting Members of Congress to send "franked" mail free of charge); 2 U. S. C. §§ 61-1, 72a, 332 (permitting Members to have sizable taxpayer-funded staffs); 2 U. S. C. § 123b (establishing the House Recording Studio and the Senate Recording and Photographic Studios).^[93] At the same time that incumbent Members of Congress enjoy these in-kind benefits, Congress imposes spending and contribution limits in congressional campaigns that "can prevent challengers from spending more. . . to overcome their disadvantage in name recognition." App. to Brief for State of Washington as Amicus Curiae A-4 (statement of former 10-term Representative William E. Frenzel, referring to 2 U. S. C. § 441a). Many observers believe that the campaign-finance laws also give incumbents an "enormous fund-raising edge" over their challengers by giving a large financing role to entities with incentives to curry favor with incumbents. Wertheimer & Manes, Campaign Finance Reform: A Key to Restoring the Health of Our Democracy, 94 Colum. L. Rev. 1126, 1133 (1994). In [923] addition, the internal rules of Congress put a substantial premium on seniority, with the result that each Member's already plentiful opportunities to distribute benefits to his constituents increase with the length of his tenure. In this manner, Congress effectively "fines" the electorate for voting against incumbents. Hills, 53 U. Pitt. L. Rev., at 144-145.

Cynics see no accident in any of this. As former Representative Frenzel puts it: "The practice . . . is for incumbents to devise institutional structures and systems that favor incumbents." App. to Brief for State of Washington as Amicus Curiae A-3. In fact, despite his service from 1971 to 1989 on the House Administration Committee (which has jurisdiction over election laws), Representative Frenzel can identify no instance in which Congress "changed election laws in such a way as to lessen the chances of re-election for incumbents, or to improve the election opportunities for challengers." Ibid.

At the same time that incumbents enjoy the electoral advantages that they have conferred upon themselves, they also enjoy astonishingly high reelection rates. As Lloyd Cutler reported in 1989, "over the past thirty years a weighted average of ninety percent of all House and Senate incumbents of both parties who ran for reelection were reelected, even at times when their own party lost control of the Presidency itself." Cutler, Now is the Time for All Good Men . . . , 30 Wm. & Mary L. Rev. 387, 395; see also Kristol, Term Limitations: Breaking Up the Iron Triangle, 16 Harv. J. L. & Pub. Policy 95, 97, and n. 11 (1993) (reporting that in the 100th Congress, as many Representatives died as were defeated at the polls). Even in the November 1994 elections, which are widely considered to have effected the most sweeping change in Congress in recent memory, 90% of the incumbents who sought reelection to the House were successful, and nearly half of the losers were completing only their first terms. Reply Brief for Petitioners U. S. Term Limits, Inc., et al. 4, n. 5. Only 2 of the 26 Senate incumbents seeking reelection were defeated, see ibid., and one of [924] them had been elected for the first time in a special election only a few years earlier.

The voters of Arkansas evidently believe that incumbents would not enjoy such overwhelming success if electoral contests were truly fair—that is, if the government did not put its thumb on either side of the scale. The majority offers no reason to question the accuracy of this belief. Given this context, petitioners portray § 3 of Amendment 73 as an effort at the state level to offset the electoral advantages that congressional incumbents have conferred upon themselves at the federal level.

To be sure, the offset is only rough and approximate; no one knows exactly how large an electoral benefit comes with having been a long-term Member of Congress, and no one knows exactly how large an electoral disadvantage comes from forcing a well-funded candidate with high name recognition to run a write-in campaign. But the majority does not base its holding on the premise that Arkansas has struck the wrong balance. Instead, the majority holds that the Qualifications Clauses preclude Arkansas from trying to strike any balance at all; the majority simply says that "an amendment with the avowed purpose and obvious effect of evading the requirements of the Qualifications Clauses by handicapping a class of candidates cannot stand." Ante, at 831. Thus, the majority apparently would reach the same result even if one could demonstrate at trial that the electoral advantage conferred by Amendment 73 upon challengers precisely counterbalances the electoral advantages conferred by federal law upon long-term Members of Congress.

For me, this suggests only two possibilities. Either the majority's holding is wrong and Amendment 73 does not violate the Qualifications Clauses, or (assuming the accuracy of petitioners' factual claims) the electoral system that exists without Amendment 73 is no less unconstitutional than the electoral system that exists with Amendment 73.

[925] I do not mean to suggest that States have unbridled power to handicap particular classes of candidates, even when those candidates enjoy federally conferred advantages that may threaten to skew the electoral process. But laws that allegedly have the purpose and effect of handicapping a particular class of candidates traditionally are reviewed under the First and Fourteenth Amendments rather than the Qualifications Clauses. Compare Storer v. Brown, 415 U. S., at 728-736 (undertaking a lengthy First and Fourteenth Amendment analysis of a California rule that denied ballot access to any independent candidate for Congress who had not severed his ties to a political party at least one year prior to the immediately preceding primary election, or 17 months before the general election), with id., at 746, n. 16 (dismissing as "wholly without merit" the notion that this rule might violate the Qualifications Clauses). Term-limit measures have tended to survive such review without difficulty. See, e. g., Moore v. McCartney, 425 U. S. 946 (1976) (dismissing an appeal from State ex rel. Maloney v. McCartney, 159 W. Va. 513, 223 S. E. 2d 607, on the ground that limits on the terms of state officeholders do not even raise a substantial federal question under the First and Fourteenth Amendments).

To analyze such laws under the Qualifications Clauses may open up whole new vistas for courts. If it is true that "the current congressional campaign finance system . . . has created an electoral system so stacked against challengers that in many elections voters have no real choices," Wertheimer & Manes, 94 Colum. L. Rev., at 1133, are the Federal Election Campaign Act Amendments of 1974 unconstitutional under (of all things) the Qualifications Clauses? Cf. Buckley v. Valeo, 424 U. S. 1 (1976) (upholding the current system against First Amendment challenge). If it can be shown that nonminorities are at a significant disadvantage when they seek election in districts dominated by minority voters, would the intentional creation of "majority-minority [926] districts" violate the Qualifications Clauses even if it were to survive scrutiny under the Fourteenth Amendment? Cf. Shaw v. Reno, 509 U. S. 630, 649 (1993) ("[W]e express no view as to whether [the intentional creation of such districts] always gives rise to an equal protection claim"); id., at 677 (Stevens, J., dissenting) (arguing that States may draw district lines for the "sole purpose" of helping blacks or members of certain other groups win election to Congress). More generally, if "[d]istrict lines are rarely neutral phenomena" and if "districting inevitably has and is intended to have substantial political consequences," Gaffney v. Cummings, 412 U. S. 735, 753 (1973), will plausible Qualifications Clause challenges greet virtually every redistricting decision? Cf. id., at 754 (noting our general refusal to use the Equal Protection Clause to "attemp[t] the impossible task of extirpating politics from what are the essentially political processes of the sovereign States"); see also Burns v. Richardson, 384 U. S. 73, 89, n. 16 (1966) (finding nothing invidious in the practice of drawing district lines in a way that helps current incumbents by avoiding contests between them).

The majority's opinion may not go so far, although it does not itself suggest any principled stopping point. No matter how narrowly construed, however, today's decision reads the Qualifications Clauses to impose substantial implicit prohibitions on the States and the people of the States. I would not draw such an expansive negative inference from the fact that the Constitution requires Members of Congress to be a certain age, to be inhabitants of the States that they represent, and to have been United States citizens for a specified period. Rather, I would read the Qualifications Clauses to do no more than what they say. I respectfully dissent.

[1] Together with No. 93-1828, Bryant, Attorney General of Arkansas v. Hill et al., also on certiorari to the same court.

[2] Briefs of amici curiae urging reversal in both cases were filed for the State of Nebraska et al. by Don Stenberg, Attorney General of Nebraska, and L. Steven Grasz, Deputy Attorney General, and by the Attorneys General for their respective States as follows: Daniel E. Lungren of California, Gale A. Norton of Colorado, Richard Blumenthal of Connecticut, Charles M. Oberly III of Delaware, Robert A. Butterworth of Florida, Michael J. Bowers of Georgia, Robert A. Marks of Hawaii, Robert T. Stephan of Kansas, Chris Gorman of Kentucky, Scott Harshbarger of Massachusetts, Joseph P. Mazurek of Montana, Jeffrey R. Howard of New Hampshire, Lee Fisher of Ohio, Mark Barnett of South Dakota, Charles W. Burson of Tennessee, and Joseph B. Meyer of Wyoming; for the State of Washington by Christine O. Gregoire, Attorney General, James K. Pharris and William B. Collins, Senior Assistant Attorneys General, and Jeffrey T. Even, Assistant Attorney General; for Citizens for Term Limits et al. by Ronald A. Zumbrun, Anthony T. Caso, Deborah J. La Fetra, and John M. Groen; for the Citizens United Foundation by William J. Olson and John S. Miles; for Congressional Term Limits Coalition, Inc., by John C. Armor and Lowell D. Weeks; for the Mountain States Legal Foundation et al. by William Perry Pendley; for People's Advocate, Inc., et al. by Jayna P. Karpinski; for the United States Justice Foundation by James V. Lacy; for Virginians for Term Limits et al. by Charles A. Shanor, Zachary D. Fasman, Margaret H. Spurlin, and G. Stephen Parker; and for the Washington Legal Foundation et al. by Timothy E. Flanigan, Daniel J. Popeo, and Paul D. Kamenar.

Briefs of amici curiae urging reversal in No. 93-1456 were filed for the Alaska Committee for a Citizen Congress et al. by Jeanette R. Burrage; for the Allied Educational Foundation by Bertram R. Gelfand and Jeffrey C. Dannenberg; and for Governor John Engler by Stephen J. Safranek.

Briefs of amici curiae urging affirmance in both cases were filed for the American Civil Liberties Union et al. by Kevin J. Hamilton and Steven R. Shapiro; for the California Democratic Party by Daniel H. Lowenstein and Jonathan H. Steinberg; for the League of Women Voters of the United States et al. by Frederic C. Tausend and Herbert E. Wilgis III; and for Henry J. Hyde by Charles A. Rothfeld.

[3] The Circuit Court also held that § 3 was severable from the other provisions of the amendment, but that the entire amendment was void under state law for lack of an enacting clause. App. to Pet. for Cert. in No. 93-1456, p. 60a. The Arkansas Supreme Court affirmed the Circuit Court's decision regarding severability, U. S. Term Limits, Inc. v. Hill, 316 Ark. 251, 270, 872 S. W. 2d 349, 359 (1994), and reversed its decision regarding the enacting clause, id. , at 263, 872 S. W. 2d, at 355. The decision of the Arkansas Supreme Court with respect to those issues of state law is not before us.

[4] As we explained, that term may describe more than the provisions quoted, supra, at 783:

"In addition to the three qualifications set forth in Art. I, § 2, Art. I, § 3, cl. 7, authorizes the disqualification of any person convicted in an impeachment proceeding from `any Office of honor, Trust or Profit under the United States'; Art. I, § 6, cl. 2, provides that `no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office'; and § 3 of the 14th Amendment disqualifies any person `who, having previously taken an oath . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.' It has been argued that each of these provisions, as well as the Guarantee Clause of Article IV and the oath requirement of Art. VI, cl. 3, is no less a `qualification' within the meaning of Art. I, § 5, than those set forth in Art. I, § 2." Powell v. McCormack, 395 U. S. 486, 520, n. 41 (1969).

In Powell, we saw no need to resolve the question whether those additional provisions constitute "qualifications," because "both sides agree that Powell was not ineligible under any of these provisions." Ibid. We similarly have no need to resolve that question today: Because those additional provisions are part of the text of the Constitution, they have little bearing on whether Congress and the States may add qualifications to those that appear in the Constitution.

[5] Art.I, § 5, cl.1, provides in part: "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do business . . . ."

[6] Justice Stewart dissented on procedural grounds, arguing that the case should have been dismissed as moot. See 395 U. S.,at 559-561. Other than expressing agreement with the characterization of the case as raising constitutional issues which "`touch the bedrock of our political system [and] strike at the very heart of representative government,' " id., at 573, Justice Stewart did not comment on the merits.

[7] The Powell Court emphasized the word "exclude" because it had been argued that the House Resolution depriving Powell of his seat should be viewed as an expulsion rather than an exclusion. Having rejected that submission, the Court expressed no opinion on issues related to the House's power to expel a Member who has been sworn in and seated.

[8] Though Powell addressed only the power of the House, the Court pointed out that its rationale was equally applicable to the Senate: "Since Art. I, § 5, cl. 1, applies to both Houses of Congress, the scope of the Senate's power to judge the qualification of its members necessarily is identical to the scope of the House's power, with the exception, of course, that Art. I, § 3, cl. 3, establishes different age and citizenship requirements for membership in the Senate." Id. ,at 522, n. 44.

[9] Though we recognized that Madison was responding to a proposal that would have allowed Congress to impose property restrictions, we noted that "Madison's argument was not aimed at the imposition of a property qualification as such, but rather at the delegation to the Congress of the discretionary power to establish any qualifications." Id. , at 534.

[10] Our examination of the history also caused us to reject the argument that the negative phrasing of the Clauses indicated that the Framers did not limit the power of the House to impose additional qualifications for membership. Id., at 537 (noting that the Committee of Style, which edited the Qualifications Clauses to incorporate "their present negative form," had "`no authority from the Convention to make alterations of substance in the Constitution as voted by the Convention, nor did it purport to do so' "); id. , at 539, quoting C. Warren, The Making of the Constitution 422, n. 1 (1947) (hereinafter Warren); see also 2 Farrand 553 (the Committee of Style was appointed "to revise the stile and arrange the articles which had been agreed to").

[11] The text of the Qualifications Clauses also supports the result we reached in Powell. John Dickinson of Delaware observed that the enumeration of a few qualifications "would by implication tie up the hands of the Legislature from supplying omissions." 2 Farrand 123. Justice Story made the same point:

"It would seem but fair reasoning upon the plainest principles of interpretation, that when the constitution established certain qualifications, as necessary for office, it meant to exclude all others, as prerequisites. From the very nature of such a provision, the affirmation of these qualifications would seem to imply a negative of all others." 1 J. Story, Commentaries on the Constitution of the United States § 625 (3d ed. 1858) (hereinafter Story). See also Warren 421 ("As the Constitution . . . expressly set forth the qualifications of age, citizenship, and residence, and as the Convention refused to grant to Congress power to establish qualifications in general, the maxim expressio unius exclusio alterius would seem to apply").

As Dickinson's comment demonstrates, the Framers were well aware of the expressio unius argument that would result from their wording of the Qualifications Clauses; they adopted that wording nonetheless. There thus is no merit either to the dissent's suggestion that Story was the first to articulate the expressio unius argument, see post, at 868-869, or to the dissent's assertion that that argument is completely without merit.

[12] The principle also incorporated the more practical concern that reposing the power to adopt qualifications in Congress would lead to a selfperpetuating body to the detriment of the new Republic. See, e. g., Powell, 395 U. S., at 533-534, quoting 2 Farrand 250 (Madison) ("`If the Legislature could regulate [the qualification of electors or elected], it can by degrees subvert the Constitution. A Republic may be converted into an aristocracy or oligarchy as well by limiting the number capable of being elected, as the number authorised to elect' "); 395 U. S., at 535-536 (citing statements of Williamson and Madison emphasizing the potential for legislative abuse).

[13] Contrary to the dissent's suggestion, post, at 879, we do not understand Powell as reading the Qualifications Clauses "to create a personal right to be a candidate for Congress." The Clauses did, however, further the interest of the people of the entire Nation in keeping the door to the National Legislature open to merit of every description.

[14] Justice Thomas' dissent purports to agree with the outcome of Powell, but rejects the reasoning in the opinion. The dissent treats Powell as simply an application of the "default rule" that if "the Constitution is silent about the exercise of a particular power—that is, where the Constitution does not speak either expressly or by necessary implication—the Federal Government lacks that power and the States enjoy it." Post, at 848, 876, 885-886. However, there is not a word in the Court's opinion in Powell suggesting that the decision rested on the "default rule" that under girds the dissent's entire analysis. On the contrary, as the excerpt from Nixon quoted in the text plainly states, our conclusion in Powell was based on our understanding of the "fixed meaning of `[q]ualifications' set forth in Art. I, § 2." We concluded that the Framers affirmatively intended the qualifications set forth in the text of the Constitution to be exclusive in order to effectuate the principle that in a representative democracy the people should choose whom they please to govern them.

Moreover, the Court has never treated the dissent's "default rule" as absolute. In McCulloch v. Maryland, 4 Wheat. 316 (1819), for example, Chief Justice Marshall rejected the argument that the Constitution's silence on state power to tax federal instrumentalities requires that States have the power to do so. Under the dissent's unyielding approach, it would seem that McCulloch was wrongly decided. Similarly, the dissent's approach would invalidate our dormant Commerce Clause jurisprudence, because the Constitution is clearly silent on the subject of state legislation that discriminates against interstate commerce. However, though Justice Thomas has endorsed just that argument, see, e. g., Oklahoma Tax Comm'n v. Jefferson Lines, Inc., ante, p. 175 (Scalia, J., concurring in judgment, joined by Thomas, J.), the Court has consistently rejected that argument and has continued to apply the dormant Commerce Clause, see, e. g., ante, at 179-180; Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U. S. 888 (1988).

[15] Our decision in Powell and its historical analysis were consistent with prior decisions from state courts. For example, in State ex rel. Johnson v. Crane, 65 Wyo. 189, 197 P. 2d 864 (1948), the Wyoming Supreme Court undertook a detailed historical analysis and concluded that the Qualifications Clauses were exclusive. Several other courts reached the same result, though without performing the same detailed historical analysis. See, e. g., Hellmann v. Collier, 217 Md. 93, 141 A. 2d 908 (1958); State ex rel. Chandler v. Howell, 104 Wash. 99, 175 P. 569 (1918); State ex rel. Eaton v. Schmahl, 140 Minn. 219, 167 N. W. 481 (1918); see generally State ex rel. Johnson v. Crane, 65 Wyo., at 204-213, 197 P. 2d, at 869-874 (citing cases).

The conclusion and analysis were also consistent with the positions taken by commentators and scholars. See, e. g., n. 9, supra; see also Warren 412-422 (discussing history and concluding that "[t]he elimination of all power in Congress to fix qualifications clearly left the provisions of the Constitution itself as the sole source of qualifications").

[16] More recently, the commentators have split, with some arguing that state-imposed term limits are constitutional, see, e. g., Gorsuch & Guzman, Will the Gentlemen Please Yield? A Defense of the Constitutionality of State-Imposed Term Limitation, 20 Hofstra L. Rev. 341 (1991); Hills, A Defense of State Constitutional Limits on Federal Congressional Terms, 53 U. Pitt. L. Rev. 97 (1991); Safranek, Term Limitations: Do the Winds of Change Blow Unconstitutional?, 26 Creighton L. Rev. 321 (1993), and others arguing that they are not, see, e. g., Lowenstein, Are Congressional Term Limits Constitutional?, 18 Harv. J. L. & Pub. Policy 1 (1994); Eid & Kolbe, The New Anti-Federalism: The Constitutionality of State-Imposed Limits on Congressional Terms of Office, 69 Denver L. Rev. 1 (1992); Comment, Congressional Term Limits: Unconstitutional by Initiative, 67 Wash. L. Rev. 415 (1992).

[17] Thus, contrary to the dissent's suggestion, post, at 856-857, Justice Story was not the first, only, or even most influential proponent of the principle that certain powers are not reserved to the States despite constitutional silence. Instead, as Chief Justice Marshall's opinion in McCulloch reveals, that principle has been a part of our jurisprudence for over 175 years.

[18] The Constitution's provision for election of Senators by the state legislatures, see Art. I, § 3, cl. 1, is entirely consistent with this view. The power of state legislatures to elect Senators comes from an express delegation of power from the Constitution, and thus was not at all based on some aspect of original state power. Of course, with the adoption of the Seventeenth Amendment, state power over the election of Senators was eliminated, and Senators, like Representatives, were elected directly by the people.

[19] The Clauses also reflect the idea that the Constitution treats both the President and Members of Congress as federal officers.

[20] The dissent places a novel and implausible interpretation on this paragraph. Consistent with its entire analysis, the dissent reads Madison as saying that the sole purpose of the Qualifications Clauses was to set minimum qualifications that would prevent the States from sending incompetent representatives to Congress; in other words, Madison viewed the Clauses as preventing the States from opening the door to this part of the federal service too widely. See post, at 900-902.

The text of The Federalist No. 52 belies the dissent's reading. First, Madison emphasized that "[t]he qualifications of the elected . . . [were] more susceptible of uniformity." His emphasis on uniformity would be quite anomalous if he envisioned that States would create for their representatives a patchwork of qualifications. Second, the idea that Madison was in fact concerned that States would open the doors to national service too widely is entirely inconsistent with Madison's emphasizing that the Constitution kept "the door . . . open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith." The Federalist No. 52, at 326.

Finally the dissent argues that "Madison could not possibly have been rebuking the States for setting unduly high qualifications for their representatives in Congress," post, at 901, and suggests that Madison's comments do not reflect "an implicit criticism of the States for setting unduly high entrance barriers," post, at 902. We disagree. Though the dissent attempts to minimize the extensiveness of state-imposed qualifications by focusing on the qualifications that States imposed on delegates to Congress and the age restrictions that they imposed on state legislators, the dissent neglects to give appropriate attention to the abundance of property, religious, and other qualifications that States imposed on state elected officials. As we describe in some detail, infra, at 823-826, nearly every State had property qualifications, and many States had religious qualifications, term limits, or other qualifications. As Madison surely recognized, without a constitutional prohibition, these qualifications could be applied to federal representatives. We cannot read Madison's comments on the "open door" of the Federal Government as anything but a rejection of the "unduly high" barriers imposed by States.

[21] The dissent attacks our holding today by arguing that the Framers' distrust of the States extended only to measures adopted by "state legislatures," and not to measures adopted by "the people themselves." Post, at 889. See also post, at 889-890 ("These delegates presumably did not want state legislatures to be able to tell Members of Congress from their State" how to vote) (emphasis added). The novelty and expansiveness of the dissent's attack is quite astonishing. We are aware of no case that would even suggest that the validity of a state law under the Federal Constitution would depend at all on whether the state law was passed by the state legislature or by the people directly through amendment of the state constitution. Indeed, no party has so argued. Quite simply, in our view, the dissent's distinction between state legislation passed by the state legislature and legislation passed by state constitutional amendment is untenable. The qualifications in the Constitution are fixed, and may not be altered by either States or their legislatures.

[22] The Framers' decision to reject a proposal allowing for States to recall their own representatives, see 1 Farrand 20, 217, reflects these same concerns.

[23] The dissent's arguments concerning these provisions of the Constitution, see post, at 889-895, simply reinforce our argument that the constitutional provisions surrounding elections all reveal the Framers' basic fear that the States might act to undermine the National Legislature. For example, as the dissent concedes, the Framers feared that States would use the control over salaries to influence the votes of their representative. See post, at 889-890. Similarly, the dissent concedes that the Times, Places and Manner Clause reflects the Framers' fear that States would not conduct federal elections at all. See post, at 894. We believe that the dissent's reading of the provisions at issue understates considerably the extent of the Framers' distrust. However, even under the dissent's reading of the provisions, the text of the Constitution unquestionably reveals the Framers' distrust of the States regarding elections, and thus provides powerful evidence supporting our view that the qualifications established in the Constitution are exclusive.

[24] A proposal requiring rotation for Members of the House was proposed at the Convention, see 1 Farrand 20, but was defeated unanimously, see id. , at 217.There is no record of any debate on either occasion.

[25] 2 Elliot's Debates 309-310 (N.Y., Smith). See also id., at 287-288 (N. Y., G. Livingston) (Senators will enjoy "a security of their re-election, as longas they please.. ..In such a situation,men are apt to forget their dependence, lose their sympathy, and contract selfish habits. . . . The senators will associate only with men of their own class, and thus become strangers to the condition of the common people"); id., at 30-31 (Mass., Turner) ("Knowing the numerous arts that designing men are prone to, to secure their election, and perpetuate themselves, it is my hearty wish that a rotation may be provided for"); id. , at 62 (Mass., Kingsley) ("[W]e are deprived of annual elections, have no rotation, and cannot recall our members; therefore our federal rulers will be masters, and not servants"); Samuel Bryan, "Centinel I," Independent Gazetteer (Phil., Oct. 5, 1787), 1 Debate on the Constitution 52, 61 (B. Bailyn ed. 1990) (hereinafter Bailyn) ("[A]s there is no exclusion by rotation, [Senators] may be continued for life, which, from their extensive means of influence, would follow of course"); Letter from George Lee Turberville to Madison (Dec. 11, 1787), 1 Bailyn 477, 479 ("Why was not that truely republican mode of forcing the Rulers or sovereigns of the states to mix after stated Periods with the people again—observed"); Mercy Otis Warren, "A Columbian Patriot" (Boston, Feb. 1788), 2 Bailyn 284, 292 ("There is no provision for a rotation, nor any thing to prevent the perpetuity of office in the same hands for life. . . . By this neglect we lose the advantages of that check to the overbearing insolence of office, which by rendering him ineligible at certain periods, keeps the mind of man in equilibrio, and teaches him the feelings of the governed").

[26] Letter of Dec. 20, 1787, from Thomas Jefferson to James Madison. 1 id. , at 209, 211. In 1814, in another private letter, Jefferson expressed the opinion that the States had not abandoned the power to impose term limits. See Letter of Jan. 31, 1814, to Joseph C. Cabell, in 14 Writings of Thomas Jefferson 82 (A. Lipscomb ed. 1904). Though he noted that his reasoning on the matter "appears to me to be sound," he went on to note:

"but, on so recent a change of view, caution requires us not to be too confident, and that we admit this to be one of the doubtful questions on which honest men may differ with the purest of motives; and the more readily, as we find we have differed from ourselves on it." Id. , at 83. The text of Jefferson's response clearly belies the dissent's suggestion that Jefferson "himself did not entertain serious doubts of its correctness." Post, at 874, n. 14.

[27] See n. 40, infra.

[28] George Washington made a similar argument:

"The power under the Constitution will always be in the People. It is entrusted for certain defined purposes, and for a certain limited period, to representatives of their own chusing; and whenever it is executed contrary to their Interest, or not agreeable to their wishes, their Servants can, and undoubtedly will be, recalled." 1 Bailyn 305, 306-307.

[29] Petitioners set forth several other arguments to support their contention that the Convention and ratification debates reveal that the qualifications in the Qualifications Clauses were not intended to be exclusive. We find none of these persuasive.

Petitioners first observe that the notes of Edmund Randolph, who was a member of the Committee of Detail, reveal that an early draft of the Qualifications Clause provided:

"The qualifications of (a) delegates shall be the age of twenty-five years at least. and citizenship: (and any person possessing these qualifications may be elected except)." 2 Farrand 139 (footnote omitted). Petitioners suggest that the deletion of the parenthetical material from the Clause suggests that the Framers did not intend the Qualifications Clause to be exclusive. We reject this argument. First, there is no evidence that the draft in Randolph's notes was ever presented to the Convention, and thus the deletion of the Clause tells us little about the views of the Convention as a whole. Moreover, even assuming that the Convention had seen the draft, the deletion of the language without comment is at least as consistent with a belief—as suggested by Dickinson, see n. 9, supra —that the language was superfluous as with a concern that the language was inappropriate. Finally, contrary to the rather ingenious argument advanced in the dissent, see post, at 887-888, it seems to us irrelevant that the draft in question did not include a comparable parenthetical clause referring to "elected" Senators because the draft contemplated that Senators, unlike Representatives, would not be chosen by popular election.

Nor is there merit to the argument that the inclusion in the Committee's final draft of a provision allowing each House to add property qualifications, see 2 Farrand 179, is somehow inconsistent with our holding today. First, there is no conflict between our holding that the qualifications for Congress are fixed in the Constitution and a provision in the Constitution itself providing for property qualifications. Indeed, that is why our analysis is consistent with the other disqualifications contained in the Constitution itself. See n. 2, supra. The Constitution simply prohibits the imposition by either States or Congress of additional qualifications that are not contained in the text of the Constitution. Second, of course, the property provision was deleted, thus providing further evidence that the Framers wanted to minimize the barriers that would exclude the most able citizens from service in the National Government.

Respondent Republican Party of Arkansas also argues that the negative phrasing of the Qualifications Clauses suggests that they were not meant to be exclusive. Brief for Respondents Republican Party of Arkansas et al. 5-6. This argument was firmly rejected in Powell, see 395 U. S., at 537-539, and n. 73; see also Warren 422, n. 1, and we see no need to revisit it now.

[30] We recognize that the "Committee of Elections were not unanimous in these sentiments," and that a "minority advocated the right of the State Legislature to prescribe additional qualifications to the members from the respective States." 17 Annals of Cong. 873 (1807).

[31] See, e. g., Powell, 395 U. S., at 544-546 (noting examples).

[32] See also 2 Farrand 123 (it is "improper that any man of merit should be subjected to disabilities in a Republic where merit was understood to form the great title to public trust, honors & rewards") (Dickinson); The Federalist No. 36, at 217 ("There are strong minds in every walk of life that will rise superior to the disadvantages of situation and will command the tribute due to their merit, not only from the classes to which they particularly belong, but from the society in general. The door ought to be equally open to all") (Hamilton); N. Webster, "A Citizen of America," (Phil., Oct. 17, 1787), 1 Bailyn 129, 142 ("[M]oney is not made a requisite— the places of senators are wisely left open to all persons of suitable age and merit").

[33] Cf. Hawke v. Smith (No. 1), 253 U. S. 221, 226 (1920) ("The Constitution of the United States was ordained by the people, and, when duly ratified, it became the Constitution of the people of the United States"). Compare U. S. Const., Preamble ("We the People"), with The Articles of Confederation, reprinted in 2 Bailyn 926 ("we the under signed Delegates of the States").

[34] There is little significance to the fact that Amendment 73 was adopted by a popular vote, rather than as an Act of the state legislature. See n. 19, supra. In fact, none of the petitioners argues that the constitutionality of a state law would depend on the method of its adoption. This is proper, because the voters of Arkansas, in adopting Amendment 73, were acting as citizens of the State of Arkansas, and not as citizens of the National Government. The people of the State of Arkansas have no more power than does the Arkansas Legislature to supplement the qualifications for service in Congress. As Chief Justice Marshall emphasized in McCulloch, "Those means are not given by the people of a particular State, not given by the constituents of the legislature, . . . but by the people of all the States." 4 Wheat., at 428-429.

The dissent concedes that the people of the Nation have an interest in preventing any State from sending "immature, disloyal, or unknowledgeable representatives to Congress," post, at 869, but does not explain why the people of the Nation lack a comparable interest in allowing every State to send mature, loyal, and knowledgeable representatives to Congress. In our view, the interest possessed by the people of the Nation and identified by the dissent is the same as the people's interest in making sure that, within "reasonable limitations, the door to this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith." The Federalist No. 52, at 326.

[35] See, e. g., 7 Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies 3816 (F. Thorpe ed. 1909) (hereinafter Thorpe) (Virginia) (members of state legislature must be freeholders); 4 id. , at 2460, 2461 (New Hampshire) (freehold estate of 200 pounds for state senators; estate of 100 pounds, at least half of which is freehold, for state representatives); 3 id. , at 1691, 1694 (Maryland) (real and personal property of over 500 pounds for House of Delegates; real and personal property of 1,000 pounds for Senate); id. , at 1897, 1898 (freehold estate of 300 pounds or personal estate of 600 pounds for state senators; freehold estate of 100 pounds or ratable estate of 200 pounds for state representatives); 1 id. , at 562 (Delaware) (state legislators must be freeholders); 5 id. , at 2595 (New Jersey) (members of Legislative Council must be freeholders and must have real and personal property of 1,000 pounds; members of Assembly must have real and personal property of 500 pounds); id. , at 2631 (New York) (state senators must be freeholders); id. , at 2790 (North Carolina) (100 acres of land for House; 300 acres of land in Senate); 2 id. , at 779 (Georgia) (150 acres of land or property of 250 pounds); 6 id. , at 3251 (South Carolina) (freehold estate of 2,000 pounds for state senate).

[36] Judge Tucker expressed doubt about the constitutionality of the provisions of the Virginia statute, noting that "these provisions, as they require qualifications which the constitution does not, may possibly be found to be nugatory." 1 W. Blackstone, Commentaries Appendix 213 (S. Tucker ed. 1803). Judge Tucker noted the two primary arguments against the power to add such a qualification:

"First, that in a representative government, the people have an undoubted right to judge for themselves of the qualification of their delegate, and if their opinion of the integrity of their representative will supply the want of estate, there can be no reason for the government to interfere, by saying, that the latter must and shall overbalance the former.

"Secondly; by requiring a qualification in estate it may often happen, that men the best qualified in other respects might be incapacitated from serving their country." Ibid.

[37] See 4 Thorpe 2477, 2479 (New Hampshire) (100 pounds for House; 200 pounds for Senate); 2 id. , at 786 (Georgia) (200 acres of land or 150 pounds for House; 250 acres of land or 250 pounds for Senate); 6 id. , at 3259 (South Carolina) (500 acres and 10 slaves or 150 pounds sterling for House; 300 pounds sterling for Senate); 1 id. , at 570, 571 (Delaware) (freehold for House; freehold estate of 200 acres or real and personal property of 1,000 pounds for Senate). Pennsylvania amended its Constitution in 1790. Neither the old constitution nor the amended one contained property qualifications for state representatives. See 5 id. , at 3084; id. , at 3092-3093.

Several State Constitutions also imposed religious qualifications on state representatives. For example, New Hampshire's Constitution of 1784 and its Constitution of 1792 provided that members of the State Senate and House of Representatives be "of the protestant religion." 4 id. , at 2460, 2461-2462 (1784 Constitution); id. , at 2477, 2479 (1792 Constitution). North Carolina's Constitution provided that "no clergyman, or preacher of the gospel, of any denomination, shall be capable of being a member of either the Senate, House of Commons, or Council of State," 5 id. , at 2793, and that "no person, who shall deny the being of God or the truth of the Protestant religion . . . shall be capable of holding any office or place of trust or profit in the civil department within this State," ibid. Georgia and South Carolina also had religious qualifications in their Constitutions for state legislators, see 2 id. , at 779 (Georgia) ("of the Protestant religion"); 6 id. , at 3252 (South Carolina) (must be "of the Protestant religion"), but deleted those provisions when they amended their Constitutions, in 1789, see 2 id. , at 785, and in 1790, see 6 id. , at 3258, respectively. Article VI of the Federal Constitution, however, prohibited States from imposing similar qualifications on federal legislators.

[38] See 2 Bailyn 926, 927 ("[N]o person shall be capable of being a delegate for more than three years in any term of six years").

[39] See 1 Farrand 20 ("Res[olved] that the members of the first branch of the National Legislature ought . . . to be incapable of re-election for the space of [blank] after the expiration of their term of service"). See also n. 22, supra.

[40] See, e. g., G. Wood, Creation of the American Republic, 1776-1787, p. 140 (1969) (noting that 7 of the 10 State Constitutions drafted in 1776— 1777 provided for term limits on their state executives); see also App. to Brief for State Petitioner 1b—34b (describing provisions of State Constitutions).

[41] 3 Thorpe 1695-1697 (Maryland); 4 id. , at 2467 (New Hampshire); 5 id. , at 3085 ((Pennsylvania); 5 id. , at 2793 (North Carolina).

[42] New York attached to its ratification a list of proposed amendments and "enjoin[ed] it upon their representatives in Congress to exert all their influence, and use all reasonable means, to obtain a ratification." 1 Elliot's Debates 329. One of the proposed amendments was "That no person be eligible as a senator for more than six years in any term of twelve years." Id. , at 330. In Virginia, the Convention similarly "enjoin[ed] it upon their representatives," 2 Bailyn 564, to adopt "a Declaration or Bill of Rights," id. , at 558, which would include the statement that members of the Executive and Legislative Branches "should at fixed periods be reduced to a private station, return into the mass of the people; and the vacancies be supplied by certain and regular elections; in which all or any part of the former members to be eligible or ineligible, as the rules of the Constitution of Government, and the laws shall direct," id. , at 559. The North Carolina Convention proposed nearly identical language, see id. , at 566, though that Convention ultimately did not ratify the Constitution, see 4 Elliot's Debates 250-251. Thus, at least three States proposed some form of constitutional amendment supporting term limits for Members of Congress.

[43] Petitioners and the dissent also point out that Georgia, Maryland, Massachusetts, Virginia, and North Carolina added district residency requirements, and petitioners note that New Jersey and Connecticut established nominating processes for congressional candidates. They rely on these facts to show that the States believed they had the power to add qualifications. We again are unpersuaded. First, establishing a nominating process is no more setting a qualification for office than is creating a primary. Second, it seems to us that States may simply have viewed district residency requirements as the necessary analog to state residency requirements. Thus, state practice with respect to residency requirements does not necessarily indicate that States believed that they had a broad power to add restrictions. Finally, we consider the number of state-imposed qualifications to be remarkably small. Despite the array of property, religious, and other qualifications that were contained in State Constitutions, petitioners and the dissent can point to only one instance of a state-imposed property qualification on candidates for Congress, and five instances of district residency requirements. The state practice seems to us notable for its restraint, and thus supports the conclusion that States did not believe that they generally had the power to add qualifications.

Nor are we persuaded by the more recent state practice involving qualifications such as those that bar felons from being elected. As we have noted, the practice of States is a poor indicator of the effect of restraints on the States, and no court has ever upheld one of these restrictions. Moreover, as one moves away from 1789, it seems to us that state practice is even less indicative of the Framers' understanding of state power.

Finally, it is important to reemphasize that the dissent simply has no credible explanation as to why almost every State imposed property qualifications on state representatives but not on federal representatives. The dissent relies first on the obvious but seemingly irrelevant proposition that the state legislatures were larger than state congressional delegations. Post, at 913-914, n. 37. If anything, the smaller size of the congressional delegation would have made States more likely to put qualifications on federal representatives since the election of any "pauper" would have had proportionally greater significance. The dissent also suggests that States failed to add qualifications out of fear that others, e. g., Congress, believed that States lacked the power to add such qualifications. Of course, this rationale is perfectly consistent with our view that the general understanding at the time was that States lacked the power to add qualifications.

[44] Justice Dudley noted in his concurrence: "I am reassured by the style of this case, U. S. Term Limits, Inc. That name implies just what this amendment is: A practical limit on the terms of the members of the Congress." 316 Ark., at 276, 872 S. W. 2d, at 364 (opinion concurring in part and dissenting in part).

[45] The uncontested data submitted to the Arkansas Supreme Court indicate that, in over 1,300 Senate elections since the passage of the Seventeenth Amendment in 1913, only 1 has been won by a write-in candidate. In over 20,000 House elections since the turn of the century, only 5 have been won by write-in candidates. App. 201-202. Indeed, it is for this reason that the Arkansas Supreme Court found the possibility of a write-in victory to be a mere "glimme[r] of opportunity for those disqualified." 316 Ark., at 266, 872 S. W. 2d, at 357; see also id. , at 276, 872 S. W. 2d, at 364 (Dudley, J., concurring in part and dissenting in part) ("as a practical matter, the amendment would place term limits on service in the Congress").

[46] Contrary to the dissent, post, at 919-920, we read a majority of the Arkansas Supreme Court as holding that Amendment 73 has the same practical effect as an absolute bar. See 316 Ark., at 266, 872 S. W. 2d, at 357 (plurality opinion) (the "intent and the effect of Amendment 73 are to disqualify congressional incumbents from further service"); id. , at 276, 872 S. W. 2d, at 364 (Dudley, J., concurring in part and dissenting in part) ("That name implies just what this amendment is: A practical limit on the terms of the members of the Congress"). However, as we note in the text, infra, at 831, we do not rely on the state court's finding on this point. See also infra, at 836.

[47] We noted in Lubin v. Panish, 415 U. S. 709 (1974), that "[t]he realities of the electoral process . . . strongly suggest that `access' via write-in votes falls far short of access in terms of having the name of the candidate on the ballot." Id., at 719, n. 5; see also Anderson v. Celebrezze, 460 U. S. 780, 799, n. 26 (1983) ("We have previously noted that [a write-in] opportunity is not an adequate substitute for having the candidates name appear on the printed ballot"); United States v. Classic, 313 U. S. 299, 313 (1941) ("Even if . . . voters may lawfully write into their ballots, cast at the general election, the name of a candidate rejected at the primary and have their ballots counted, the practical operation of the primary law . . . is such as to impose serious restrictions upon the choice of candidates by the voters"); Burdick v. Takushi, 504 U. S. 428, 437, n. 7 (1992) ("If the dissent were correct in suggesting that requiring primary voters to select a specific ballot impermissibly burdened the right to vote, it is clear under our decisions that the availability of a write-in option would not provide an adequate remedy").

[48] ArticleI,§ 4,cl. 1, provides:

"The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."

[49] See also "The Republican," Connecticut Courant (Hartford, Jan. 7, 1788), 1 Bailyn 710, 713 ("The constitution expressly provides that the choice shall be by the people, which cuts off both from the general and state Legislatures the power of so regulating the mode of election, as to deprive the people of a fair choice").

[50] Nor does Clements v. Fashing, 457 U. S. 957 (1982), support petitioners. In Clements, the Court rejected First and Fourteenth Amendment challenges to Texas' so-called "resign-to-run" provision. That provision treated an elected state official's declaration of candidacy for another elected office as an automatic resignation from the office then held. We noted that the regulation was a permissible attempt to regulate state officeholders. See id. , at 972 ("Appellees are elected state officeholders who contest restrictions on partisan political activity") (emphasis deleted); id. , at 974, n. 1 (Stevens, J., concurring in part and concurring in judgment) ("The fact that appellees hold state office is sufficient to justify a restriction on their ability to run for other office that is not imposed on the public generally"). As the Ninth Circuit recognized in upholding a similar resign-to-run statute from Arizona: "The burden on candidacy . . . is indirect and attributable to a desire to regulate state officeholders and not to impose additional qualifications to serving in Congress." Joyner v. Mofford, 706 F. 2d 1523, 1528 (1983);see also Signorelli v. Evans, 637 F. 2d 853, 859 (CA2 1980) ("New York's purpose is to regulate the judicial office that [the candidate] holds, not the Congressional office he seeks"). Moreover, as now-Chief Judge Newman observed while upholding similar restrictions imposed by New York, such provisions "plac[e] no obstacle between [a candidate] and the ballot or his nomination or his election. He is free to run and the people are free to choose him." Id. ,at 858.

[51] See U. S.Const., Amdt. 22 (1951) (limiting Presidents to two 4-year terms).

[52] See,e. g., Amdt. 17 (1913) (direct elections of Senators); Amdt. 19 (1920) (extending suffrage to women); Amdt. 22 (1951) (Presidential term limits); Amdt. 24 (1964) (prohibition against poll taxes); Amdt. 26 (1971) (lowering age of voter eligibility to 18).

[53] The ringing initial words of the Constitution—"We the People of the United States"—convey something of the same idea. (In the Constitution, after all, "the United States" is consistently a plural noun. See Art. I, § 9, cl. 8; Art. II, § 1, cl. 7; Art. III, § 2, cl. 1; Art. III, § 3, cl. 1; cf. Amar, Of Sovereignty and Federalism, 96 Yale L. J. 1425, 1455 (1987) (noting this fact, though reaching other conclusions).) The Preamble that the Philadelphia Convention approved before sending the Constitution to the Committee of Style is even clearer. It began: "We the people of the States of New-Hampshire, Massachusetts, Rhode-Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia . . . ." 2 Records of the Federal Convention of 1787, p. 565 (M. Farrand ed. 1911) (hereinafter Farrand). Scholars have suggested that the Committee of Style adopted the current language because it was not clear that all the States would actually ratify the Constitution. M. Farrand, The Framing of the Constitution of the United States 190-191 (1913). In this instance, at least, I agree with the majority that the Committee's edits did not work a substantive change in the Constitution. Cf. ante, at 792, n. 8.

[54] The concurring opinion appears to draw precisely the opposite conclusion from the passage in McCulloch that contains this sentence. See ante, at 840-841. But while the concurring opinion seizes on Marshall's references to "the people," Marshall was merely using that phrase in contradistinction to "the State governments." Counsel for Maryland had noted that "the constitution was formed and adopted, not by the people of the United States at large, but by the people of the respective States. To suppose that the mere proposition of this fundamental law threw the American people into one aggregate mass, would be to assume what the instrument itself does not profess to establish." McCulloch, 4 Wheat., at 363 (argument of counsel). Marshall's opinion accepted this premise, even borrowing some of counsel's language. See id., at 403. What Marshall rejected was counsel's conclusion that the Constitution therefore was merely "a compact between the States." See id., at 363 (argument of counsel). As Marshall explained, the acts of "the people themselves" in the various ratifying conventions should not be confused with "the measures of the State governments." Id., at 403; see also id., at 404 (noting that no state government could control whether the people of that State decided to adopt the Constitution).

[55] At the time of the framing, of course, a Federal Congress had been operating under the Articles of Confederation for some 10 years. The States unquestionably had enjoyed the power to establish qualifications for their delegates to this body, above and beyond the qualifications created by the Articles themselves. See Brief for Respondents Bobbie E. Hill et al. 39, n. 79 (conceding this point); see also, e. g., Md. Const. of 1776, Art. XXVII (prescribing such qualifications), in 3 Federal and State Constitutions 1695-1696 (F. Thorpe ed. 1909) (hereinafter Thorpe); N. H. Const. of 1784, Pt. II (same), in 4 Thorpe 2467. It is surprising, then, that the concurring opinion seeks to buttress the majority's case by stressing the continuing applicability of "the same republican principles" that had prevailed under the Articles. See ante, at 839.

[56] Despite the majority's odd suggestion to the contrary, see ante, at 796— 797, n. 12, I fully agree with this sensible position. See supra, at 848.

[57] Though cited by the majority, see ante, at 802, Crandall v. Nevada, 6 Wall. 35 (1868), did not deviate from this accepted view of McCulloch. See Crandall, supra, at 48 (observing that McCulloch and a number of other cases "distinctly placed the invalidity of the State taxes on the ground that they interfered with an authority of the Federal government").

[58] To support its decision to attribute such surplusage to McCulloch, the majority quotes Marshall's observation that his opinion "`does not deprive the States of any resources which they originally possessed,' " because the power to tax federal instrumentalities was not encompassed by the States' "`original right to tax.' " Ante, at 802 (quoting McCulloch, 4 Wheat., at 436, 430). In part, Marshall was simply refuting counsel's argument that it would constitute an "overwhelming invasion of State sovereignty" for Congress to establish a bank that operated within a State but that nonetheless was exempt from state taxes. See id., at 337-339 (argument of counsel) (stressing that "the right to raise revenue" is "the highest attribute of sovereignty" and indeed amounts to "the right to exist"). While Marshall acknowledged that "this original right of taxation" was an "essential" attribute of state sovereignty that Congress could not constitutionally control or invade, he focused more precisely than counsel on "the nature and extent of this original right," id., at 428, and concluded that it did not include the right "to tax the means employed by the government of the Union, for the execution of its powers." Id., at 430. In this respect, then, the Court was referring to the States' "original" powers in much the same context as Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528 (1985): The Court was examining whether Congress' exercise of the "privilege of exempting its own measures from State taxation," McCulloch, supra, at 434, had invaded a protected sphere of state sovereignty.

Marshall did go on to argue that the power to tax the operations of the Bank of the United States simply was not susceptible to control by the people of a single State. See 4 Wheat., at 430. But that theory is perfectly consistent with my position. Marshall reasoned that the people of a single State may not tax the instrumentalities employed by the people of all the States through the National Government, because such taxation would effectively subject the people of the several States to the taxing power of a single State. See id., at 428. This sort of argument proves that the people of a single State may not prescribe qualifications for the President of the United States; the selection of the President, like the operation of the Bank of the United States, is not up to the people of any single State. See infra, at 862. It does not follow, however, that the people of a single State may not prescribe qualifications for their own representatives in Congress.

[59] See 1 S. Johnson, A Dictionary of the English Language 393 (4th ed. 1773) (defining "congress" as "[a]n appointed meeting for settlement of affairs between different nations: as, the congress of Cambray"); T. Sheridan, A Complete Dictionary of the English Language (6th ed. 1796) ("an appointed meeting for settlement of affairs between different nations; the assembly which governs the United States of America").

[60] The majority even suggests that congressional elections do not really work in this way, because each House of Congress has the power to judge its Members' qualifications. See ante, at 804 (citing Art. I, § 5, cl. 1). But the power to act as "Judge" under Art. I, § 5, is merely the power to apply pre-existing qualifications to which the people of each State have consented. See Powell v. McCormack, 395 U. S. 486 (1969). Whether or not § 5 directs each House to judge state-law disqualifications as well as those contained in the Constitution, see infra, at 895, it is clear that neither House may exclude a representative from Massachusetts for failure to meet a qualification that the people of Massachusetts have not accepted.

[61] The only provision that might conceivably do so is Article II, § 1, which recognizes the authority of state legislatures to specify the "Manner" in which a State appoints its Presidential electors. But if a qualifications law is a "Manner" regulation for purposes of this Clause, then it is also a "Manner" regulation for purposes of Article I, § 4—which would mean that the Constitution specifically recognizes the power of both the States and the Congress to set qualifications for Senators and Representatives.

[62] Accord, e. g., 2 Elliot 24 (remarks of Caleb Strong at the Massachusetts ratifying convention) ("[I]f the legislature of a state should refuse to make such regulations, the consequence will be, that the representatives will not be chosen, and the general government will be dissolved. In such case, can gentlemen say that a power to remedy the evil is not necessary to be lodged somewhere? And where can it be lodged but in Congress?"); 2 Documentary History of the Ratification of the Constitution 400 (M. Jensen ed. 1976) (notes of Anthony Wayne at the Pennsylvania ratifying convention) ("4th section occasioned by an eventual invasion, insurrection, etc."); The Federalist No. 59, at 363 (Hamilton) (observing that if not subject to any checks, the States "could at any moment annihilate [the Federal Government] by neglecting to provide for the choice of persons to administer its affairs").

These statements about the Clause's purposes also help refute the majority's claim that it was bizarre for the Framers to leave the States relatively free to enact qualifications for congressional office while simultaneously giving Congress "make or alter" power over the States' time, place, and manner regulations. See infra, at 896-898.

[63] Thus, the age requirement was intended to ensure that Members of Congress were people of mature judgment and experience. See,e. g., 1 Farrand 375 (remarks of George Mason at the Philadelphia Convention); 3 id., at 147 (remarks of James McHenry before the Maryland House of Delegates). The citizenship requirement was intended both to ensure that Members of Congress were familiar with the country and that they were not unduly susceptible to foreign influence. See, e. g., 2 id., at 216 (remarks of George Mason). The inhabitancy requirement was intended to produce a National Legislature whose Members, collectively, had a local knowledge of all the States. See, e. g., The Federalist No. 56 (Madison). The Ineligibility Clause was intended to guard against corruption. See, e. g., 1 Farrand 381 (remarks of Alexander Hamilton).

[64] The principle that the Constitution rests on the consent of the people of the States points in the same direction. Both the process of selecting delegates to the Philadelphia Convention and the ratification procedure erected by Article VII were designed to let the States and the people of the States protect their interests. Lest those protections be evaded, one should not be quick to read the Qualifications Clauses as imposing unstated prohibitions that pre-empt all state qualifications laws. Cf. L. Tribe, American Constitutional Law § 6-25, p. 480 (2d ed. 1988) (arguing that courts should hesitate to read federal statutes to pre-empt state law, because "to give the state-displacing weight of federal law to mere congressional ambiguity would evade the very procedure for lawmaking on which Garcia [v. San Antonio Metropolitan Transit Authority, 469 U. S. 528 (1985)] relied to protect states' interests"); Gregory v. Ashcroft, 501 U. S. 452, 464 (1991) (applying this argument).

[65] Even when Congress enacted the first federal naturalization law in 1790, it left open the possibility that the individual States could establish more lenient standards of their own for admitting people to citizenship. While Hamilton had suggested that Congress' power to "establish an uniform Rule" logically precluded the States from deviating downward from the rule that Congress established, see The Federalist No. 32, at 199, the early cases on this question took the opposite view. See Collet v. Collet, 2 Dall. 294, 296 (CC Pa. 1792) (Wilson, Blair, and Peters, JJ.). States therefore continued to enact naturalization laws of their own until 1795, when Congress passed an exclusive naturalization law. See J. Kettner, Development of American Citizenship, 1608-1870, pp. 242-243 (1978).

[66] The majority notes Jefferson's concession that state power to supplement the Qualifications Clauses was "one of the doubtful questions on which honest men may differ with the purest of motives." See ante, at 813, n. 24; 14 Writings of Thomas Jefferson 83 (A. Lipscomb ed. 1904). But while Jefferson cautioned against impugning the motives of people who might disagree with his position, his use of the phrase "[o]f course" suggests that he himself did not entertain serious doubts of its correctness.

[67] The majority also errs in its interpretation of Nixon v. United States, 506 U. S. 224 (1993). See ante, at 796, n. 12. In dictum, Nixon did refer to "the fixed meaning of `[q]ualifications' set forth in Art. I, § 2." 506 U. S., at 237. But as both the surrounding context and the internal punctuation of this passage make clear, Nixon was referring to the meaning of the word "Qualifications" in § 5; that term, after all, does not even appear in the House Qualifications Clause of § 2. Thus, Nixon merely said that § 5 directs the House to judge the qualifications "set forth in Art. I, § 2," and not qualifications of its own invention. See also infra, at 895. There would have been no occasion for Nixon to extend Powell: The only point of its discussion was to explain why the question at issue in Powell was justiciable, while the question at issue in Nixon (which concerned impeachment) was not.

[68] Oregon, for instance, pioneered a system in which the state legislature bound itself to appoint the candidates chosen in a statewide vote of the people. See Hills, A Defense of State Constitutional Limits on Federal Congressional Terms, 53 U. Pitt. L. Rev. 97, 108 (1991). The majority is in the uncomfortable position of suggesting that this system violated "democratic principles."

[69] For instance, the majority quotes Noah Webster's observation that under the Constitution, "the places of senators are wisely left open to all persons of suitable age and merit, and who have been citizens of the United States for nine years." See ante, at 820, n. 30 (citing "A Citizen of America" (Oct. 17, 1787), in 1 Debate on the Constitution 129, 142 (B. Bailyn ed. 1993) (hereinafter Bailyn)). But there is no reason to read Webster as denying the power of state legislatures to pass resolutions limiting the field of potential candidates that they would consider for appointment to the Senate. Indeed, it seems implausible that Webster would have been invoking the majority's vision of "democratic principles" in support of the constitutional provisions calling for Senators to be appointed by the various state legislatures rather than being elected directly by the people of the States.

Similarly, the majority quotes a newspaper piece written by John Stevens, Jr., to the people of New York. See ante, at 819-820. But Stevens gave the following explanation for his assertion that "[n]o man who has real merit . . . need despair" under the system erected by the Constitution: "He first distinguishes himself amongst his neighbours at township and county meeting; he is next sent to the State Legislature. In this theatre his abilities . . . are . . . displayed to the views of every man in the State: from hence his ascent to a seat in Congress becomes easy and sure." "Americanus," Daily Advertiser, Dec. 12, 1787, in 1 Bailyn 487, 492. As the States indisputably controlled eligibility requirements for membership in the various state legislatures, and indeed had established some disqualifications, I do not read Stevens to be saying that they were barred from doing the same thing with respect to Congress. Without addressing whether the people of the States may supplement the Qualifications Clauses, Stevens was merely praising the Constitution for imposing few such requirements of its own.

[70] For instance, the majority quotes at length from the debate that arose in the Philadelphia Convention when the Committee of Detail proposed the following clause: "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." See 2 Farrand 179, 248-251; ante, at 790-791. The defeat of this proposal—like the defeat of Gouverneur Morris' motion to drop the words "with regard to property" from the clause, so as to empower Congress to enact qualifications of any sort—simply reflects the Framers' decision not to grant Congress the power to supplement the constitutional qualifications. Considered out of context, some of James Madison's comments during the debate might be thought to go farther. See ibid. But the majority itself properly dispels this false impression. See ante, at 793, n. 10; see also Powell v. McCormack, 395 U. S., at 534.

Likewise, Powell drew support from Alexander Hamilton's comments in The Federalist No. 60, which the majority also quotes. See ante, at 791. But as the majority concedes, when Hamilton wrote that "[t]he qualifications of the persons who may choose or be chosen [for Congress] . . . are defined and fixed in the Constitution, and are unalterable by the legislature," he was merely restating his prior observation that the power to set qualifications "forms no part of the power to be conferred upon the national government." See The Federalist No. 60, at 371 (emphasis added). Indeed, only if "the legislature" to which Hamilton was referring is Congress can one make sense of his remark that the qualifications of voters as well as Congressmen are "fixed in the Constitution" and "unalterable by the legislature." Hamilton surely knew that the States or the people of the States control eligibility for the franchise. See Art. I, § 2, cl.1.

The majority does omit the context necessary to understand one aspect of the historical evidence presented in Powell. The majority quotes Powell `s observation that "on the eve of the Constitutional Convention, English precedent stood for the proposition that `the law of the land had regulated the qualifications of members to serve in parliament' and those qualifications were `not occasional but fixed.' " 395 U. S., at 528 (quoting 16 Parliamentary History of England 589, 590 (1769)); see ante, at 790. The English rule seems of only marginal relevance: The pre-existing rule in America—that States could add qualifications for their representatives in Congress, see n. 3, supra, while Congress itself could not—is surely more important. But in any event, Powell did not claim that the English rule deemed parliamentary qualifications to be fixed in the country's (unwritten) constitution, beyond the reach of a properly enacted law. Instead, qualifications were "fixed" rather than "occasional" only in the sense that neither House of Parliament could "exclude members-elect for general misconduct not within standing qualifications." Powell, 395 U. S., at 528. The English rule, in other words, was simply that when sitting as the judge of its members' qualifications, each House of Parliament could do no more than administer the pre-existing laws that defined those qualifications, see id., at 529, for "one House of Parliament cannot create a disability unknown to the law." T. Plucknett, Taswell-Langmead's English Constitutional History 585 (11th ed. 1960); cf. INS v. Chadha, 462 U. S. 919 (1983). This history was relevant to Powell (which dealt with the grounds on which one House of Congress could exclude a Member-elect), but it is not relevant to this case.

[71] The majority also argues that in any event, the views of the members of the Committee "tel[l] us little about the views of the Convention as a whole." Ante, at 815, n. 27. But our task is simply to determine whether at the time of the framing, the language of the Qualifications Clauses would have been commonly understood to contain an exclusivity provision. The surviving records suggest that the members of the Committee of Detail did not understand the final Qualifications Clauses to be exclusive, and the majority offers no reason to think that their understanding of the language was unusual for their time.

[72] The majority inaccurately reports James Madison's explanation of the Elector-Qualifications Clause in The Federalist No. 52. Madison neither mentioned nor addressed the consequences of "allowing States to differentiate between the qualifications for state and federal electors." See ante, at 808. Instead, he addressed the problems that would have arisen if the Constitution had assigned control over the qualifications of voters in House elections to the state legislatures rather than to the people of each State. It was such an arrangement that, in Madison's view, "would have rendered too dependent on the State governments that branch of the federal government which ought to be dependent on the people alone." The Federalist No. 52, at 326; cf. ante, at 808. The Elector-Qualifications Clause avoided this problem because the various state constitutions controlled who could vote in elections for the most numerous branch of the state legislature, and no state government could alter these requirements unless the people of the State (through the state constitution) decided to let it do so. See The Federalist No. 52, at 326.

Though one obviously could uphold the action of the people of Arkansas without reaching this issue, Madison's comments should not be read to suggest that the Elector-Qualifications Clause bars the people of a State from delegating their control over voter qualifications to the state legislature. The Clause itself refutes this reading; if a state constitution permits the state legislature to set voter qualifications, and if eligibility for the franchise in the State therefore turns on statutory rather than constitutional law, federal electors in the State still must meet the same qualifications as electors for the most numerous branch of the state legislature. Madison could not possibly have disagreed with this understanding of the Clause. Instead, he was simply explaining why, when it came to voter qualifications for House elections, the Framers had not followed the model of Article I, § 3, cl. 1, and vested ultimate control with the state legislatures (regardless of what the people of a State might provide in their state constitutions).

[73] Likewise, the Constitution requires the States to appoint Presidential electors, Art. II, § 1, cl. 2, but it does not provide for any congressional override if the States refuse to do so (or if the States set impossibly high qualifications and then announce that no one meets them).

[74] Even if there is anything left of the majority's argument on this point, it would still have no bearing on whether the Framers intended to preclude the people of each State from supplementing the constitutional qualifications. Just as the Framers had no fear that the people of a State would destroy congressional elections by entirely disenfranchising themselves, see The Federalist No. 52, at 326, so the Framers surely had no fear that the people of the States would destroy congressional elections by entirely disqualifying all candidates.

[75] As the majority notes, see ante, at 837, and 812, n. 22, the Philadelphia Convention had dropped without discussion a portion of the original Randolph Resolutions calling for Members of the House of Representatives "to be incapable of re-election for the space of [blank space] after the expiration of their term of service." 1 Farrand 20. This provision, which at a minimum would have barred all Members of the House from serving consecutive terms, was abandoned without objection when the Convention voted to require House Members to stand for election every three years. See id., at 214-217; see also id., at 362 (opting for 2-year terms instead). Subsequently, indeed, some members of the Convention appeared to be unaware that a rotation requirement had ever been proposed. See 2 id., at 120 (remarks of Gouverneur Morris).

The majority properly does not cite the omission of this nationwide rotation requirement as evidence that the Framers meant to preclude individual States from adopting rotation requirements of their own. Just as individual States could extend the vote to women before the adoption of the Nineteenth Amendment, could prohibit poll taxes before the adoption of the Twenty-fourth Amendment, and could lower the voting age before the adoption of the Twenty-sixth Amendment, so the Framers' decision not to impose a nationwide limit on congressional terms did not itself bar States from adopting limits of their own. See, e. g., Ga. Const. of 1877, § 2-602 (adopted Aug. 3, 1943) (reducing voting age to 18 nearly three decades before the Twenty-sixth Amendment was proposed); Harman v. Forssenius, 380 U. S. 528, 539 (1965) (noting that by the time the Twenty-fourth Amendment was proposed, "only five States retained the poll tax as a voting requirement"); Congressional Research Service, The Constitution of the United States of America: Analysis and Interpretation 1571 (1973) (reporting that 11 States had adopted women's suffrage by the time the Nineteenth Amendment was proposed). Cf. ante, at 837, and n. 50.

[76] See Del. Const. of 1776, Art. 11, in 1 Thorpe 564; Md. Const. of 1776, Form of Government, Art. XXVII, in 3 Thorpe 1695; Mass. Const. of 1780, Pt. 2,Ch. IV, in 3 Thorpe 1906; N. H. Const. of 1784, Pt. II, in 4 Thorpe 2467; N. Y. Const. of 1777, Art. XXX, in 5 Thorpe 2634-2635; N. C. Const. of 1776, Form of Government, Art. XXXVII, in 5 Thorpe 2793; Pa. Const. of 1776, Frame of Government, § 11, in 5 Thorpe 3085; S. C. Const. of 1778, Art. XXII, in 6 Thorpe 3253; Va. Const. of 1776, in 7 Thorpe 3817.

[77] Md. Const. of 1776, Form of Government, Art. XXVII, in 3 Thorpe 1695; N. H. Const. of 1784, Pt. II, in 4 Thorpe 2467; N. C. Const. of 1776, Art. XXXVII, in 5 Thorpe 2793; Pa. Const. of 1776, Frame of Government, § 11, in 5 Thorpe 3085.

[78] Md. Const. of 1776, Form of Government, Art. XXVII, in 3 Thorpe 1695; N. H. Const. of 1784, Pt. II, in 4 Thorpe 2467; Pa. Const. of 1776, Frame of Government, § 11, in 5 Thorpe 3085.

[79] See Md. Const. of 1776, Art. XXVII, in 3 Thorpe 1695; N. H. Const. of 1784, Pt. II, in 4 Thorpe 2467.

[80] The majority suggests that I have overlooked Madison's observation that subject to the "reasonable limitations" spelled out in the House Qualifications Clause, the Constitution left the House's door "open to merit of every description." See ante, at 807-808, n. 18; see also ante, at 808 (quoting a similar passage from The Federalist No. 57). As discussed above, however, such statements do not advance the majority's case. See supra, at 880-881.

[81] The immediately preceding portion of the Clause requires not only "[t]he Senators and Representatives before mentioned" but also "the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States," to take an "Oath or Affirmation" to support the Constitution. Art.VI, cl.3.

[82] Despite the majority's emphasis on the Framers' supposed desire for uniformity in congressional elections, even the majority does not dispute that the Framers wanted to let States decide for themselves whether to use district elections in selecting Members of the House of Representatives. The Framers fully expected that in some States each Member of the House would be chosen by the people of the whole State, while in other States each Member would be directly accountable only to the people of a single district. See, e. g., 14 Papers of Thomas Jefferson 3 (J. Boyd ed. 1958) (letter from Madison to Jefferson, Oct. 8, 1788).

[83] See Georgia Election Law (Jan. 23, 1789) (restricting representatives from each district to "resident[s] of three years standing in the district"), in 2 First Federal Elections 456, 457; Maryland Election Law (Dec. 22, 1788) (simple district residency requirement), in 2 First Federal Elections 136, 138; Massachusetts Election Resolutions (Nov. 20, 1788) (same), in 1 First Federal Elections 508, 509 (M. Jensen & R. Becker eds. 1976); North Carolina Election Law (Dec. 16, 1789) (requiring the person elected from each district to have been "a Resident or Inhabitant of that Division for which he is elected, during the Space or Term of one Year before, and at the Time of Election"), in 4 First Federal Elections 347; Virginia Election Law (Nov. 20, 1788) (requiring each candidate to have been "a bona fide resident for twelve months within such District"), in 2 First Federal Elections 293, 294. Upon being admitted to the Union in 1796, Tennessee also required its Members in the Federal House of Representatives to have been Tennessee residents for three years and district residents for one year before their election. Act of Apr. 20, 1796, ch. 10, in Laws of the State of Tennessee 81 (1803).

[84] After the Virginia Legislature had enacted this bill, some of James Madison's friends suggested that he might find it harder to win election in his own district than in certain other areas of the State. They believed that if Madison won the popular vote in one of those other districts, the House of Representatives could seat him on the theory that States cannot add to the constitutional qualifications. See 11 Papers of James Madison 378-379 (R. Rutland & C. Hobson eds. 1977) (letter from Carrington to Madison, Dec. 2, 1788). Other advisers, however, warned that the people of Virginia might not share this understanding of the Constitution. As Alexander White wrote in a letter to Madison: "Some Gentlemen suppose you may be elected in other Districts, and that Congress would disregard the Act which requires Residence in a particular District. I will not undertake to decide that question, but this I know, such a determination would afford much ground of clamour, and enable the opposers of the Government to inflame the Minds of the People beyond anything which has yet happened." Id., at 380 (Dec. 4, 1788). Madison himself apparently never endorsed the idea that he should test the district residency requirement. Instead, he ran from his own district (where he overcame a stiff challenge from another future President, James Monroe).

[85] The records show that Maryland's House of Delegates put the district residency requirement to a separate vote and approved it by a margin of 41 to 24. 2 First Federal Elections 129-130 (summarizing proceedings from Dec. 3, 1788). A subsequent effort to jettison the requirement lost by a vote of 39 to 28. Id., at 132-133 (summarizing proceedings from Dec. 10, 1788). Language in Maryland's second election law confirms that the state legislature knew that it was supplementing the Qualifications Clauses. The Act of December 10, 1790, stipulated that each candidate must "b[e] a resident of his district at the time of the election, and hav[e] resided therein twelve calendar months immediately before, and [be] otherways qualified according to the constitution of the United States." 1790 Laws of Maryland, ch. XVI, art. VIII.

In Georgia, too, the State House of Assembly called special attention to the district residency requirement. Shortly before Georgia held its first federal elections, the House adopted a resolution to stress that if the top votegetter in any district had not been "an actual resident of three years standing" in that district, then "such person shall not be considered as eligible nor shall he be commissioned." 2 First Federal Elections 459 (resolution of Feb. 4, 1789).

[86] Even the experience in New York and South Carolina—the only States that opted for district elections without requiring district residency—does not support the majority's position. While the records from South Carolina are sketchy, those from New York affirmatively undermine the majority's suggestion that the Qualifications Clauses were commonly understood to be exclusive. When the topic was first broached in the State Assembly, the assemblymen defeated a district residency proposal amid comments that "to add any other qualification [to those listed in the Constitution] would be unconstitutional." 3 First Federal Elections 232 (Dec. 18, 1788). But the State Senate took a different view, adding a district residency requirement when it considered the election bill. Id., at 320. The Assembly then approved the requirement by a vote of 36 to 12, id., at 325-326 (Jan. 19, 1789), but reconsidered the requirement the following day (apparently with more assemblymen in attendance). After a sophisticated debate on the constitutional question, with some assemblymen arguing that the district residency requirement was unconstitutional and others responding that the Constitution merely erected minimum qualifications, the Assembly divided evenly over the requirement: 28 voted in favor of it and 28 voted against it. Id., at 328-335 (Jan. 20, 1789). The chairman broke the tie with a vote against the requirement. Id., at 335. Still, there clearly was no consensus in the New York Assembly. What is more, some of the votes against the district residency requirement may well have been cast by assemblymen who simply opposed the requirement on policy grounds, as an undue restriction on the people's ability to elect nonresidents if they wanted to do so. In any event, the New York Senate obviously considered the requirement constitutional.

There is evidence that some members of the Pennsylvania Legislature considered the Qualifications Clauses to be exclusive. See 1 id., at 282— 288. Of course, they also believed that § 2 of Article I—which calls for Members of the Federal House of Representatives to be "chosen . . . by the People of the several States"—forbade Pennsylvania to elect its representatives by districts. See id., at 283. The legislatures of the five States that adopted district residency requirements, who had the Pennsylvania example before them, disagreed with the Pennsylvania legislators.

[87] The majority correctly notes that each convention, in addition to proposing a list of specific "Amendments to the Constitution," proposed a "Declaration of Rights" to be appended to the Constitution. In both States, this "Declaration" contained the general exhortation that members of both the Legislative and Executive Branches "should, at fixed periods, be reduced to a private station, return into the mass of the people, and the vacancies be supplied by certain and regular elections." 4 Elliot 243; 3 id., at 657-658. But both Declarations went on to state that at these elections, the previous occupants of the office in question should "be eligible or ineligible [for reelection], as the rules of the constitution of government and the laws shall direct." 4 id., at 243; 3 id., at 658. Accordingly, it is hard to describe either Declaration as a "proposed . . . constitutional amendment supporting term limits for Members of Congress." See ante, at 826, n. 40.

[88] As for New York, the State's ratifying convention did propose amending the Federal Constitution to provide "[t]hat no person be eligible as a senator for more than six years in any term of twelve years." 1 Elliot 329-330. The majority finds it significant that when this suggestion fell on deaf ears, New Yorkers did not amend their State Constitution to impose this restriction on their state legislature's appointment authority. Before the Seventeenth Amendment was adopted, however, the Federal Constitution vested the choice of Senators in the state legislatures rather than the people. See Art. I, § 3, cl. 1. At least without a delegation of this authority from the legislature, cf. supra, at 878-882, and n. 16, the people of New York may well have thought that they could no more amend the State Constitution to narrow the legislature's choices for Senator than they could amend the State Constitution to take the appointment of Senators entirely away from the legislature. It obviously would not follow that they doubted their ability to amend the State Constitution to impose constraints on their own choice of Representatives. The ratifying convention's proposal thus sheds absolutely no light on whether New Yorkers considered the Qualifications Clauses to be exclusive.

[89] Property qualifications may simply have seemed unnecessary. For instance, it surely was far more likely that a pauper would secure one of the 202 seats in the South Carolina House of Representatives than that he would secure one of South Carolina's five seats in the United States House of Representatives. Compare S. C. Const. of 1778, Art. XIII, in 6 Thorpe 3251, with U. S. Const., Art. I, § 2, cl. 3; cf. S. C. Const. of 1790, Art. I, § 3 (providing for a 122-seat State House of Representatives), in 6 Thorpe 3258. It may be significant, then, that the one State that saw fit to enact a congressional property qualification was also the State that had the largest congressional delegation. See U. S. Const., Art. I, § 2, cl. 3 (allocating 10 seats to Virginia). In addition, people of the day expected that "[t]he representatives of each State [in the federal House] . . . will probably in all cases have been members . . . of the State legislature." The Federalist No. 56, at 348 (Madison); see also n. 17, supra (quoting article by John Stevens, Jr.). Because most States had property requirements for their state legislators, there may have been little perceived need for a separate property qualification for their Members of Congress.

Even States that wanted to create such a qualification, and that considered it within their constitutional authority to do so, might have been deterred by the possibility that the Federal House of Representatives would take a different view. As I have shown, there certainly was no general understanding that the Qualifications Clauses included an unstated exclusivity provision. But people of the day did consider this to be "one of the doubtful questions on which honest men may differ with the purest motives." 14 Writings of Thomas Jefferson, at 83 (letter to Joseph C. Cabell, Jan. 31, 1814); see n. 14, supra. If some States feared that the "honest men" in the House might throw out the results of an election because of a qualifications law, they might well have thought that any policy benefits of such laws were outweighed by the risk that they would temporarily be deprived of representation in Congress. Alternatively, they may simply have wanted to stay away from difficult constitutional questions. Cf. Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring). Thus, despite concluding that the States do enjoy the power to prescribe qualifications, Thomas Jefferson questioned whether the advantages of added qualifications were sufficient to justify enacting a law whose constitutionality could be disputed. See 14 Writings of Thomas Jefferson, at 84.

[90] Though obliquely acknowledging this fact, the majority thinks it relevant that some subsequent commentators have mistakenly accepted the gloss put on the McCreery case by two editors in 1834. See ante, at 817-818 (citing treatises,each of which relies upon Cases of Contested Elections in Congress (M. Clarke & D. Halleds. 1834)). But surely we need not accept an inaccurate view of history merely because it has appeared in print. The majority also cites Thomas Jefferson's hazy recollection of the McCreery case, see ante, at 817, without acknowledging Jefferson's conclusion that the States were free to supplement the Qualifications Clauses. See supra, at 873-874.

[91] Going into the November 1994 elections, eight States had adopted "pure" term limits of one sort or another. See Colo. Const., Art. XVIII, § 9a; Mich. Const., Art. II, § 10; Mo. Const., Art. III, § 45(a); Mont. Const., Art. IV, § 8; Ohio Const., Art. V, § 8; Ore. Const., Art. II, § 20; S. D. Const., Art. III, § 32; Utah Code Ann. § 20A-10-301. Eight other States had enacted "ballot access" provisions triggered by long-term incumbency or multiple prior terms in Congress. See Ariz. Const., Art. VII, § 18; Ark. Const., Amdt. 73, § 3;Calif. Elec. Code Ann. § 25003 (West Supp. 1994); Fla. Const., Art. VI, §§ 4(b)(5), (6); N. D. Cent. Code § 16.1-01-13.1 (Supp. 1993); Okla. Const., Art. II, § 12A; Wash. Rev. Code §§ 29.68.015, 29.68.016 (1994); Wyo. Stat. § 22-5—104 (Supp. 1994). In the 1994 elections, six more States—Alaska, Idaho, Maine, Massachusetts, Nebraska, and Nevada— enacted term-limit or ballot-access measures, bringing to 22 the total number of States with such provisions. See Pear, The 1994 Elections, N. Y. Times, Nov. 10, 1994, p. B7, col. 4. In 21 of these States, the measures have been enacted by direct vote of the people.

[92] Even if one were inclined to believe that the Arkansas Supreme Court had departed from the usual practice and had purported to make a binding determination on a disputed issue of fact, we would not be foreclosed from examining the basis for that determination. To be sure, on direct review of a state court's judgment, we will not "conduct a more searching review of findings made in state trial court than we conduct with respect to federal district court findings." Hernandez v. New York, 500 U. S. 352, 369 (1991) (plurality opinion). But that is only to say that we will review state-court findings under the "clear error" standard. Ibid.; accord, id., at 372 (O'Connor, J., concurring in judgment); cf. id., at 379 (Stevens, J., dissenting) (identifying no standard of review, but arguing that the state court's decision should be reversed because its underlying factual findings were erroneous). In certain areas, indeed, this Court apparently gives quite little deference to the initial factfinder, but rather "exercise[s] its own independent judgment" about the factual conclusions that should be drawn from the record. See Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 501, and n. 17 (1984) (Stevens, J.).

[93] Former Representative William E. Frenzel describes the House Recording Studio as a sophisticated operation used "to prepare tapes of speeches and messages to voters." Frenzel explains: "Taxpayers pay for the facilities, the personnel that run them, the production costs, and the costs of distributing, by mail or otherwise, the tapes that members supply (from their taxpayer-funded expense accounts). These messages are widely disseminated by broadcasters, who can use them to fill air time at no cost to themselves." App. to Brief for State of Washington as Amicus Curiae A-5 to A-6.

408 U.S. 606 (1972)

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT.

[607] Robert J. Reinstein and Charles L. Fishman argued the cause for petitioner in No. 71-1017 and for respondent in No. 71-1026. With them on the briefs were Harvey A. Silverglate and Alan M. Dershowitz.

Solicitor General Griswold argued the cause for the United States in both cases. With him on the briefs were Assistant Attorney General Mardian, Jerome M. Feit, Allan A. Tuttle, and Robert L. Keuch.

Sam J. Ervin, Jr., and William B. Saxbe argued the cause for the Senate of the United States as amicus curiae. With them on the brief were James O. Eastland, John O. Pastore, Herman E. Talmadge, Norris Cotton, Peter H. Dominick, Charles McC. Mathias, Jr., Philip B. Kurland, and Edward I. Rothschild.

Briefs of amici curiae were filed by Melvin L. Wulf and Sanford Jay Rosen for the American Civil Liberties [608] Union; by Frank B. Frederick and Henry Paul Monaghan for the Unitarian Universalist Association; and by Morton Stavis and Doris Peterson for Leonard S. Rodberg.

Opinion of the Court by MR. JUSTICE WHITE, announced by MR. JUSTICE BLACKMUN.

These cases arise out of the investigation by a federal grand jury into possible criminal conduct with respect to the release and publication of a classified Defense Department study entitled History of the United States Decision-Making Process on Viet Nam Policy. This document, popularly known as the Pentagon Papers, bore a Defense security classification of Top Secret-Sensitive. The crimes being investigated included the retention of public property or records with intent to convert (18 U. S. C. § 641), the gathering and transmitting of national defense information (18 U. S. C. § 793), the concealment or removal of public records or documents (18 U. S. C. § 2071), and conspiracy to commit such offenses and to defraud the United States (18 U. S. C. § 371).

Among the witnesses subpoenaed were Leonard S. Rodberg, an assistant to Senator Mike Gravel of Alaska and a resident fellow at the Institute of Policy Studies, and Howard Webber, Director of M. I. T. Press. Senator Gravel, as intervenor,^[2] filed motions to quash the [609] subpoenas and to require the Government to specify the particular questions to be addressed to Rodberg.^[3] He asserted that requiring these witnesses to appear and testify would violate his privilege under the Speech or Debate Clause of the United States Constitution, Art. I, § 6, cl. 1.

It appeared that on the night of June 29, 1971, Senator Gravel, as Chairman of the Subcommittee on Buildings and Grounds of the Senate Public Works Committee, convened a meeting of the subcommittee and there read extensively from a copy of the Pentagon Papers. He then placed the entire 47 volumes of the study in the public record. Rodberg had been added to the Senator's staff earlier in the day and assisted Gravel in preparing for and conducting the hearing.^[4] Some weeks later there were press reports that Gravel had arranged for the papers to be published by Beacon [610] Press^[5] and that members of Gravel's staff had talked with Webber as editor of M. I. T. Press.^[6]

The District Court overruled the motions to quash and to specify questions but entered an order proscribing certain categories of questions. United States v. Doe, 332 F. Supp. 930 (Mass. 1971). The Government's contention that for purposes of applying the Speech or Debate Clause the courts were free to inquire into the regularity of the subcommittee meeting was rejected.^[7] Because the Clause protected all legislative [611] acts, it was held to shield from inquiry anything the Senator did at the subcommittee meeting and "certain acts done in preparation therefore." Id., at 935. The Senator's privilege also prohibited "inquiry into things done by Dr. Rodberg as the Senator's agent or assistant which would have been legislative acts, and therefore privileged, if performed by the Senator personally." Id., at 937-938.^[8] The trial court, however, held the private publication of the documents was not privileged by the Speech or Debate Clause. Id., at 936.^[9]

The Court of Appeals affirmed the denial of the motions to quash but modified the protective order to reflect its own views of the scope of the congressional privilege. United States v. Doe, 455 F. 2d 753 (CA1 1972). Agreeing that Senator and aide were one for [612] the purposes of the Speech or Debate Clause and that the Clause foreclosed inquiry of both Senator and aide with respect to legislative acts, the Court of Appeals also viewed the privilege as barring direct inquiry of the Senator or his aide, but not of third parties, as to the sources of the Senator's information used in performing legislative duties.^[10] Although it did not consider private publication by the Senator or Beacon Press to be protected by the Constitution, the Court of Appeals apparently held that neither Senator nor aide could be questioned about it because of a common-law privilege akin to the judicially created immunity of executive officers from liability for libel contained in a news release issued in the course of their normal duties. See Barr v. Matteo, 360 U. S. 564 (1959). This privilege, fashioned by the Court of Appeals, would not protect third parties from similar inquiries before the grand jury. As modified by the Court of Appeals, the protective order to be observed by prosecution and grand jury was:

"(1) No witness before the grand jury currently investigating the release of the Pentagon Papers may be questioned about Senator Mike Gravel's conduct at a meeting of the Subcommittee on Public Buildings and Grounds on June 29, 1971, nor, if the questions are directed to the motives or purposes behind the Senator's conduct at that meeting, about any communications with him or with [613] his aides regarding the activities of the Senator or his aides during the period of their employment, in preparation for and related to said meeting.

"(2) Dr. Leonard S. Rodberg may not be questioned about his own actions in the broadest sense, including observations and communications, oral or written, by or to him or coming to his attention while being interviewed for, or after having been engaged as a member of Senator Gravel's personal staff to the extent that they were in the course of his employment."

The United States petitioned for certiorari challenging the ruling that aides and other persons may not be questioned with respect to legislative acts and that an aide to a Member of Congress has a common-law privilege not to testify before a grand jury with respect to private publication of materials introduced into a subcommittee record. Senator Gravel also petitioned for certiorari seeking reversal of the Court of Appeals insofar as it held private publication unprotected by the Speech or Debate Clause and asserting that the protective order of the Court of Appeals too narrowly protected against inquiries that a grand jury could direct to third parties. We granted both petitions. 405 U. S. 916 (1972).

I

Because the claim is that a Member's aide shares the Member's constitutional privilege, we consider first whether and to what extent Senator Gravel himself is exempt from process or inquiry by a grand jury investigating the commission of a crime. Our frame of reference is Art. I, § 6, cl. 1, of the Constitution:

"The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United [614] States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place."

The last sentence of the Clause provides Members of Congress with two distinct privileges. Except in cases of "Treason, Felony and Breach of the Peace," the Clause shields Members from arrest while attending or traveling to and from a session of their House. History reveals, and prior cases so hold, that this part of the Clause exempts Members from arrest in civil cases only. "When the Constitution was adopted, arrests in civil suits were still common in America. It is only to such arrests that the provision applies." Long v. Ansell, 293 U. S. 76, 83 (1934) (footnote omitted). "Since . . . the terms treason, felony and breach of the peace, as used in the constitutional provision relied upon, excepts from the operation of the privilege all criminal offenses, the conclusion results that the claim of privilege of exemption from arrest and sentence was without merit . . . ." Williamson v. United States, 207 U. S. 425, 446 (1908).^[11] Nor does freedom from arrest confer immunity on a Member from service of process as a defendant in civil matters, Long v. Ansell, supra, at [615] 82-83, or as a witness in a criminal case. "The constitution gives to every man, charged with an offense, the benefit of compulsory process, to secure the attendance of his witnesses. I do not know of any privilege to exempt members of congress from the service, or the obligations, of a subpoena, in such cases." United States v. Cooper, 4 Dall. 341 (1800) (Chase, J., sitting on Circuit). It is, therefore, sufficiently plain that the constitutional freedom from arrest does not exempt Members of Congress from the operation of the ordinary criminal laws, even though imprisonment may prevent or interfere with the performance of their duties as Members. Williamson v. United States, supra; cf. Burton v. United States, 202 U. S. 344 (1906). Indeed, implicit in the narrow scope of the privilege of freedom from arrest is, as Jefferson noted, the judgment that legislators ought not to stand above the law they create but ought generally to be bound by it as are ordinary persons. T. Jefferson, Manual of Parliamentary Practice, S. Doc. No. 92-1, p. 437 (1971).

In recognition, no doubt, of the force of this part of § 6, Senator Gravel disavows any assertion of general immunity from the criminal law. But he points out that the last portion of § 6 affords Members of Congress another vital privilege—they may not be questioned in any other place for any speech or debate in either House. The claim is not that while one part of § 6 generally permits prosecutions for treason, felony, and breach of the peace, another part nevertheless broadly forbids them. Rather, his insistence is that the Speech or Debate Clause at the very least protects him from criminal or civil liability and from questioning elsewhere than in the Senate, with respect to the events occurring at the subcommittee hearing at which the Pentagon Papers were introduced into the public record. To us this claim is incontrovertible. [616] The Speech or Debate Clause was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch. It thus protects Members against prosecutions that directly impinge upon or threaten the legislative process. We have no doubt that Senator Gravel may not be made to answer —either in terms of questions or in terms of defending himself from prosecution—for the events that occurred at the subcommittee meeting. Our decision is made easier by the fact that the United States appears to have abandoned whatever position it took to the contrary in the lower courts.

Even so, the United States strongly urges that because the Speech or Debate Clause confers a privilege only upon "Senators and Representatives," Rodberg himself has no valid claim to constitutional immunity from grand jury inquiry. In our view, both courts below correctly rejected this position. We agree with the Court of Appeals that for the purpose of construing the privilege a Member and his aide are to be "treated as one," United States v. Doe, 455 F. 2d, at 761; or, as the District Court put it: the "Speech or Debate Clause prohibits inquiry into things done by Dr. Rodberg as the Senator's agent or assistant which would have been legislative acts, and therefore privileged, if performed by the Senator personally." United States v. Doe, 332 F. Supp., at 937-938. Both courts recognized what the Senate of the United States urgently presses here: that it is literally impossible, in view of the complexities of the modern legislative process, with Congress almost constantly in session and matters of legislative concern constantly proliferating, for Members of Congress to perform their legislative tasks without the help of aides and assistants; that the day-to-day work of such aides is so critical to the [617] Members' performance that they must be treated as the latter's alter egos; and that if they are not so recognized, the central role of the Speech or Debate Clause—to prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary, United States v. Johnson, 383 U. S. 169, 181 (1966)—will inevitably be diminished and frustrated.

The Court has already embraced similar views in Barr v. Matteo, 360 U. S. 564 (1959), where, in immunizing the Acting Director of the Office of Rent Stabilization from liability for an alleged libel contained in a press release, the Court held that the executive privilege recognized in prior cases could not be restricted to those of cabinet rank. As stated by Mr. Justice Harlan, the "privilege is not a badge or emolument of exalted office, but an expression of a policy designed to aid in the effective functioning of government. The complexities and magnitude of governmental activity have become so great that there must of necessity be a delegation and redelegation of authority as to many functions, and we cannot say that these functions become less important simply because they are exercised by officers of lower rank in the executive hierarchy." Id., at 572-573 (footnote omitted).

It is true that the Clause itself mentions only "Senators and Representatives," but prior cases have plainly not taken a liberalistic approach in applying the privilege. The Clause also speaks only of "Speech or Debate," but the Court's consistent approach has been that to confine the protection of the Speech or Debate Clause to words spoken in debate would be an unacceptably narrow view. Committee reports, resolutions, and the act of voting are equally covered; "[i]n short, . . . things generally done in a session of the House by one of its members in relation to the business before it." Kilbourn v. Thompson, 103 U. S. 168, 204 (1881), quoted [618] with approval in United States v. Johnson, 383 U. S., at 179. Rather than giving the Clause a cramped construction, the Court has sought to implement its fundamental purpose of freeing the legislator from executive and judicial oversight that realistically threatens to control his conduct as a legislator. We have little doubt that we are neither exceeding our judicial powers nor mistakenly construing the Constitution by holding that the Speech or Debate Clause applies not only to a Member but also to his aides insofar as the conduct of the latter would be a protected legislative act if performed by the Member himself.

Nor can we agree with the United States that our conclusion is foreclosed by Kilbourn v. Thompson, supra, Dombrowski v. Eastland, 387 U. S. 82 (1967), and Powell v. McCormack, 395 U. S. 486 (1969), where the speech or debate privilege was held unavailable to certain House and committee employees. Those cases do not hold that persons other than Members of Congress are beyond the protection of the Clause when they perform or aid in the performance of legislative acts. In Kilbourn, the Speech or Debate Clause protected House Members who had adopted a resolution authorizing Kilbourn's arrest; that act was clearly legislative in nature. But the resolution was subject to judicial review insofar as its execution impinged on a citizen's rights as it did there. That the House could with impunity order an unconstitutional arrest afforded no protection for those who made the arrest. The Court quoted with approval from Stockdale v. Hansard, 9 Ad. & E. 1, 112 Eng. Rep. 1112 (K. B. 1839): " `So if the speaker by authority of the House order an illegal act, though that authority shall exempt him from question, his order shall no more justify the person who executed it than King Charles's warrant for levying ship-money could justify his revenue [619] officer,' " 103 U. S., at 202.^[12] The Speech or Debate Clause could not be construed to immunize an illegal arrest even though directed by an immune legislative act. The Court was careful to point out that the Members themselves were not implicated in the actual arrest, id., at 200, and, significantly enough, reserved the question whether there might be circumstances in which "there may . . . be things done, in the one House or the other, of an extraordinary character, for which the members who take part in the act may be held legally responsible." 103 U. S., at 204 (emphasis added).

Dombrowski v. Eastland, supra, is little different in principle. The Speech or Debate Clause there protected a Senator, who was also a subcommittee chairman, but not the subcommittee counsel. The record contained no evidence of the Senator's involvement in any activity that could result in liability, 387 U. S., at 84, whereas the committee counsel was charged with conspiring with state officials to carry out an illegal seizure of records that the committee sought for its own proceedings. Ibid. The committee counsel was deemed protected to [620] some extent by legislative privilege, but it did not shield him from answering as yet unproved charges of conspiring to violate the constitutional rights of private parties. Unlawful conduct of this kind the Speech or Debate Clause simply did not immunize.

Powell v. McCormack reasserted judicial power to determine the validity of legislative actions impinging on individual rights—there the illegal exclusion of a representative-elect —and to afford relief against House aides seeking to implement the invalid resolutions. The Members themselves were dismissed from the case because shielded by the Speech or Debate Clause both from liability for their illegal legislative act and from having to defend themselves with respect to it. As in Kilbourn, the Court did not reach the question "whether under the Speech or Debate Clause petitioners would be entitled to maintain this action solely against the members of Congress where no agents participated in the challenged action and no other remedy was available." 395 U. S., at 506 n. 26.

None of these three cases adopted the simple proposition that immunity was unavailable to congressional or committee employees because they were not Representatives or Senators; rather, immunity was unavailable because they engaged in illegal conduct that was not entitled to Speech or Debate Clause protection. The three cases reflect a decidedly jaundiced view towards extending the Clause so as to privilege illegal or unconstitutional conduct beyond that essential to foreclose executive control of legislative speech or debate and associated matters such as voting and committee reports and proceedings. In Kilbourn, the Sergeant-at-Arms was executing a legislative order, the issuance of which fell within the Speech or Debate Clause; in Eastland, the committee counsel was gathering information for a hearing; and in Powell, the [621] Clerk and Doorkeeper were merely carrying out directions that were protected by the Speech or Debate Clause. In each case, protecting the rights of others may have to some extent frustrated a planned or completed legislative act; but relief could be afforded without proof of a legislative act or the motives or purposes underlying such an act. No threat to legislative independence was posed, and Speech or Debate Clause protection did not attach.

None of this, as we see it, involves distinguishing between a Senator and his personal aides with respect to legislative immunity. In Kilbourn-type situations, both aide and Member should be immune with respect to committee and House action leading to the illegal resolution. So, too, in Eastland, as in this litigation, senatorial aides should enjoy immunity for helping a Member conduct committee hearings. On the other hand, no prior case has held that Members of Congress would be immune if they executed an invalid resolution by themselves carrying out an illegal arrest, or if, in order to secure information for a hearing, themselves seized the property or invaded the privacy of a citizen. Neither they nor their aides should be immune from liability or questioning in such circumstances. Such acts are no more essential to legislating than the conduct held unprotected in United States v. Johnson, 383 U. S. 169 (1966).^[13]

The United States fears the abuses that history reveals have occurred when legislators are invested with the power to relieve others from the operation of otherwise valid civil and criminal laws. But these abuses, it seems to us, are for the most part obviated if the privilege applicable to the aide is viewed, as it must be, as the [622] privilege of the Senator, and invocable only by the Senator or by the aide on the Senator's behalf,^[14] and if in all events the privilege available to the aide is confined to those services that would be immune legislative conduct if performed by the Senator himself. This view places beyond the Speech or Debate Clause a variety of services characteristically performed by aides for Members of Congress, even though within the scope of their employment. It likewise provides no protection for criminal conduct threatening the security of the person or property of others, whether performed at the direction of the Senator in preparation for or in execution of a legislative act or done without his knowledge or direction. Neither does it immunize Senator or aide from testifying at trials or grand jury proceedings involving third-party crimes where the questions do not require testimony about or impugn a legislative act. Thus our refusal to distinguish between Senator and aide in applying the Speech or Debate Clause does not mean that Rodberg is for all purposes exempt from grand jury questioning.

II

We are convinced also that the Court of Appeals correctly determined that Senator Gravel's alleged arrangement with Beacon Press to publish the Pentagon Papers was not protected speech or debate within the meaning of Art. I, § 6, cl. 1, of the Constitution.

Historically, the English legislative privilege was not viewed as protecting republication of an otherwise immune libel on the floor of the House. Stockdale v. Hansard, 9 Ad. & E., at 114, 112 Eng. Rep., at 1156, recognized that "[f]or speeches made in Parliament by a member to the prejudice of any other person, or hazardous [623] to the public peace, that member enjoys complete impunity." But it was clearly stated that "if the calumnious or inflammatory speeches should be reported and published, the law will attach responsibility on the publisher."^[15] [624] This was accepted in Kilbourn v. Thompson as a "sound statement of the legal effect of the Bill of Rights and of the parliamentary law of England" and as a reasonable basis for inferring "that the framers of the Constitution meant the same thing by the use of language borrowed from that source." 103 U. S., at 202.

Prior cases have read the Speech or Debate Clause "broadly to effectuate its purposes," United States v. Johnson, 383 U. S., at 180, and have included within its reach anything "generally done in a session of the House by one of its members in relation to the business before it." Kilbourn v. Thompson, 103 U. S., at 204; United States v. Johnson, 383 U. S., at 179. Thus, voting by Members and committee reports are protected; and we recognize today—as the Court has recognized before, Kilbourn v. Thompson, 103 U. S., at 204; Tenney v. Brandhove, 341 U. S., 367, 377-378 (1951)—that a Member's conduct at legislative committee hearings, although subject to judicial review in various circumstances, as is legislation itself, may not be made the basis for a civil or criminal judgment against a Member because that conduct is within the "sphere of legitimate legislative activity." Id., at 376.^[16]

But the Clause has not been extended beyond the legislative [625] sphere. That Senators generally perform certain acts in their official capacity as Senators does not necessarily make all such acts legislative in nature. Members of Congress are constantly in touch with the Executive Branch of the Government and with administrative agencies—they may cajole, and exhort with respect to the administration of a federal statute—but such conduct, though generally done, is not protected legislative activity. United States v. Johnson decided at least this much. "No argument is made, nor do we think that it could be successfully contended, that the Speech or Debate Clause reaches conduct, such as was involved in the attempt to influence the Department of Justice, that is in no wise related to the due functioning of the legislative process." 383 U. S., at 172. Cf. Burton v. United States, 202 U. S., at 367-368.

Legislative acts are not all-encompassing. The heart of the Clause is speech or debate in either House. Insofar as the Clause is construed to reach other matters, they must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House. As the Court of Appeals put it, the courts have extended the privilege to matters beyond pure speech or debate in either House, but "only when necessary to prevent indirect impairment of such deliberations." United States v. Doe, 455 F. 2d, at 760.

Here, private publication by Senator Gravel through the cooperation of Beacon Press was in no way essential to the deliberations of the Senate; nor does questioning as to private publication threaten the integrity or independence of the Senate by impermissibly exposing its deliberations to executive influence. The Senator [626] had conducted his hearings; the record and any report that was forthcoming were available both to his committee and the Senate. Insofar as we are advised, neither Congress nor the full committee ordered or authorized the publication.^[17] We cannot but conclude that the Senator's arrangements with Beacon Press were not part and parcel of the legislative process.

There are additional considerations. Article I, § 6, cl. 1, as we have emphasized, does not purport to confer a general exemption upon Members of Congress from liability or process in criminal cases. Quite the contrary is true. While the Speech or Debate Clause recognized speech, voting, and other legislative acts as exempt from liability that might otherwise attach, it does not privilege either Senator or aide to violate an otherwise valid criminal law in preparing for or implementing legislative acts. If republication of these classified papers would be a crime under an Act of Congress, it would not be entitled to immunity under the Speech or Debate Clause. It also appears that the grand jury was pursuing this very subject in the normal course of a valid investigation. The Speech or Debate Clause does not in our view extend immunity to Rodberg, as a Senator's aide, from testifying before the grand jury about the arrangement between Senator Gravel and Beacon Press or about his own participation, if any, in the [627] alleged transaction, so long as legislative acts of the Senator are not impugned.

III

Similar considerations lead us to disagree with the Court of Appeals insofar as it fashioned, tentatively at least, a nonconstitutional testimonial privilege protecting Rodberg from any questioning by the grand jury concerning the matter of republication of the Pentagon Papers. This privilege, thought to be similar to that protecting executive officials from liability for libel, see Barr v. Matteo, 360 U. S. 564 (1959), was considered advisable "[t]o the extent that a congressman has responsibility to inform his constituents . . . ." 455 F. 2d, at 760. But we cannot carry a judicially fashioned privilege so far as to immunize criminal conduct proscribed by an Act of Congress or to frustrate the grand jury's inquiry into whether publication of these classified documents violated a federal criminal statute. The socalled executive privilege has never been applied to shield executive officers from prosecution for crime, the Court of Appeals was quite sure that third parties were neither immune from liability nor from testifying about the republication matter, and we perceive no basis for conferring a testimonial privilege on Rodberg as the Court of Appeals seemed to do.

IV

We must finally consider, in the light of the foregoing, whether the protective order entered by the Court of Appeals is an appropriate regulations of the pending grand jury proceedings.

Focusing first on paragraph two of the order, we think the injunction against interrogating Rodberg with respect to any act, "in the broadest sense," performed by him within the scope of his employment, overly restricts [628] the scope of grand jury inquiry. Rodberg's immunity, testimonial or otherwise, extends only to legislative acts as to which the Senator himself would be immune. The grand jury, therefore, if relevant to its investigation into the possible violations of the criminal law, and absent Fifth Amendment objections, may require from Rodberg answers to questions relating to his or the Senator's arrangements, if any, with respect to republication or with respect to third-party conduct under valid investigation by the grand jury, as long as the questions do not implicate legislative action of the Senator. Neither do we perceive any constitutional or other privilege that shields Rodberg, any more than any other witness, from grand jury questions relevant to tracing the source of obviously highly classified documents that came into the Senator's possession and are the basic subject matter of inquiry in this case, as long as no legislative act is implicated by the questions.^[18]

Because the Speech or Debate Clause privilege applies both to Senator and aide, it appears to us that paragraph one of the order, alone, would afford ample protection for the privilege if it forbade questioning any witness, including Rodberg: (1) concerning the Senator's [629] conduct, or the conduct of his aides, at the June 29, 1971, meeting of the subcommittee;^[19] (2) concerning the motives and purposes behind the Senator's conduct, or that of his aides, at that meeting; (3) concerning communications between the Senator and his aides during the term of their employment and related to said meeting or any other legislative act of the Senator; (4) except as it proves relevant to investigating possible third-party crime, concerning any act, in itself not criminal, performed by the Senator, or by his aides in the course of their employment, in preparation for the subcommittee hearing. We leave the final form of such an order to the Court of Appeals in the first instance, or, if that court prefers, to the District Court.

The judgment of the Court of Appeals is vacated and the cases are remanded to that court for further proceedings consistent with this opinion.

So ordered.

MR. JUSTICE STEWART, dissenting in part.

The Court today holds that the Speech or Debate Clause does not protect a Congressman from being forced to testify before a grand jury about sources of information [630] used in preparation for legislative acts. This critical question was not embraced in the petitions for certiorari. It was not dealt with in the written briefs. It was addressed only tangentially during the oral arguments. Yet it is a question with profound implications for the effective functioning of the legislative process. I cannot join in the Court's summary resolution of so vitally important a constitutional issue.

In preparing for legislative hearings, debates, and roll calls, a member of Congress obviously needs the broadest possible range of information. Valuable information may often come from sources in the Executive Branch or from citizens in private life. And informants such as these may be willing to relate information to a Congressman only in confidence, fearing that disclosure of their identities might cause loss of their jobs or harassment by their colleagues or employers. In fact, I should suppose it to be self-evident that many such informants would insist upon an assurance of confidentiality before revealing their information. Thus, the acquisition of knowledge through a promise of nondisclosure of its source will often be a necessary concomitant of effective legislative conduct, if the members of Congress are properly to perform their constitutional duty.

The Court of Appeals for the First Circuit recognized the importance of the information-gathering process in the performance of the legislative function. It held that the Speech or Debate Clause bars all grand jury questioning of a member of Congress regarding the sources of his information. The Court of Appeals reasoned that to allow a "grand jury to question a senator about his sources would chill both the vigor with which legislators seek facts, and the willingness of potential sources to supply them." United States v. Doe, 455 F. 2d 753, 758-759. The Government did not seek review of this ruling, but rather sought certiorari on the question whether the [631] Speech or Debate Clause bars a grand jury from questioning congressional aides about privileged actions of Senators or Representatives.^[20]

The Court, however, today decides, sua sponte, that a Member of Congress may, despite the Speech or Debate Clause, be compelled to testify before a grand jury concerning the sources of information used by him in the performance of his legislative duties, if such an inquiry "proves relevant to investigating possible third-party crime." Ante, at 629 (emphasis supplied).^[21] In my view, this ruling is highly dubious in view of the basic purpose of the Speech or Debate Clause—"to prevent intimidation [of Congressmen] by the executive and accountability before a possibly hostile judiciary." United States v. Johnson, 383 U. S. 169, 181.

Under the Court's ruling, a Congressman may be subpoenaed by a vindictive Executive to testify about informants who have not committed crimes and who have no knowledge of crime. Such compulsion can occur, because the judiciary has traditionally imposed virtually no limitations on the grand jury's broad investigatory powers; grand jury investigations are not limited in scope [632] to specific criminal acts, and standards of materiality and relevance are greatly relaxed.^[22] But even if the Executive had reason to believe that a Member of Congress had knowledge of a specific probable violation of law, it is by no means clear to me that the Executive's interest in the administration of justice must always override the public interest in having an informed Congress. Why should we not, given the tension between two competing interests, each of constitutional dimensions, balance the claims of the Speech or Debate Clause against the claims of the grand jury in the particularized contexts of specific cases? And why are not the Houses of Congress the proper institutions in most situations to impose sanctions upon a Representative or Senator who withholds information about crime acquired in the course of his legislative duties?^[23]

[633] I am not prepared to accept the Court's rigid conclusion that the Executive may always compel a legislator to testify before a grand jury about sources of information used in preparing for legislative acts. For that reason, I dissent from that part of the Court's opinion that so inflexibly and summarily decides this vital question.

MR. JUSTICE DOUGLAS, dissenting.

I would construe the Speech or Debate Clause^[24] to insulate Senator Gravel and his aides from inquiry concerning the Pentagon Papers, and Beacon Press from inquiry concerning publication of them, for that publication was but another way of informing the public as to what had gone on in the privacy of the Executive Branch concerning the conception and pursuit of the so-called "war" in Vietnam. Alternatively, I would hold that Beacon Press is protected by the First Amendment from prosecution or investigations for publishing or undertaking to publish the Pentagon Papers.

Gravel, Senator from Alaska, was Chairman of the Senate Subcommittee on Public Buildings and Grounds. He convened a meeting of the Subcommittee and read to it a summary of the so-called Pentagon Papers. He then introduced "the entire Papers, allegedly some 47 volumes and said to contain seven million words, as an [634] exhibit." 455 F. 2d 753, 756. Thereafter, he supplied a copy of the papers to the Beacon Press, a Boston publishing house, on the understanding that it would publish the papers without profit to the Senator. A grand jury was investigating the release of the Pentagon Papers and subpoenaed one Rodberg, an aide to Senator Gravel, to testify. Rodberg moved to quash the subpoena; and on the same day the Senator moved to intervene. Intervention was granted and in due course the Court of Appeals entered the following order which is now before us for review:

"(1) No witness before the grand jury currently investigating the release of the Pentagon Papers may be questioned about Senator Mike Gravel's conduct at a meeting of the Subcommittee on Public Buildings and Grounds on June 29, 1971, nor, if the questions are directed to the motives or purposes behind the Senator's conduct at that meeting, about any communications with him or with his aides regarding the activities of the Senator or his aides during the period of their employment, in preparation for and related to said meeting.

"(2) Dr. Leonard S. Rodberg may not be questioned about his own actions in the broadest sense, including observations and communications, oral or written, by or to him or coming to his attention while being interviewed for, or after having been engaged as a member of Senator Gravel's personal staff to the extent that they were in the course of his employment."

I

Both the introduction of the Pentagon Papers by Senator Gravel into the record before his Subcommittee and his efforts to publish them were clearly covered by [635] the Speech or Debate Clause, as construed in Kilbourn v. Thompson, 103 U. S. 168, 204:

"It would be a narrow view of the constitutional provision to limit it to words spoken in debate. The reason of the rule is as forcible in its application to written reports presented in that body by its committees, to resolutions offered, which, though in writing, must be reproduced in speech, and to the act of voting, whether it is done vocally or by passing between the tellers. In short, to things generally done in a session of the House by one of its members in relation to the business before it."^[25]

One of the things normally done by a Member "in relation to the business before it" is the introduction of documents or other exhibits in the record the committee or subcommittee is making. The introduction of a document into a record of the Committee or subcommittee by its Chairman certainly puts it in the public domain. Whether a particular document is relevant to the inquiry of the committee may be questioned by the Senate in the exercise of its power to prescribe rules for the governance and discipline of wayward members. But there is only one instance, as I see it, where supervisory power over that issue is vested in the courts, and that is where a witness before a committee is prosecuted for contempt and he makes the defense that the question he refused to answer was not germane to the legislative inquiry or within its permissible range. See Uphaus v. Wyman, 360 U. S. 72; Kilbourn v. Thompson, supra, at 190.

In all other situations, however, the judiciary's view of the motives or germaneness of a Senator's conduct [636] before a committee is irrelevant. For, "[t]he claim of an unworthy purpose does not destroy the privilege." Tenney v. Brandhove, 341 U. S. 367, 377. If there is an abuse, there is a remedy; but it is legislative, not judicial.

As to Senator Gravel's efforts to publish the Subcommittee record's contents, wide dissemination of this material as an educational service is as much a part of the Speech or Debate Clause philosophy as mailing under a frank a Senator's or a Congressman's speech across the Nation. As mentioned earlier, "[i]t is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. . . . The informing function of Congress should be preferred even to its legislative function." W. Wilson, Congressional Government 303 (1885), quoted with approval in Tenney v. Brandhove, supra, at 377 n. 6. "From the earliest times in its history, the Congress has assiduously performed an 'informing function,' " Watkins v. United States, 354 U. S. 178, 200 n. 33. "Legislators have an obligation to take positions on controversial political questions so that their constituents can be fully informed by them." Bond v. Floyd, 385 U. S. 116, 136.

We said in United States v. Johnson, 383 U. S. 169, 179, that the Speech or Debate Clause established a "legislative privilege" that protected a member of Congress against prosecution "by an unfriendly executive and conviction by a hostile judiciary" in order, as Mr. Justice Harlan put it, to ensure "the independence of the legislature." That hostility emanates from every stage of the present proceedings. It emphasizes the need to construe the Speech or Debate Clause generously, not niggardly. If republication of a Senator's speech in a newspaper carries the privilege, as it doubtless does, then republication of the exhibits introduced [637] at a hearing before Congress must also do so. That means that republication by Beacon Press is within the ambit of the Speech or Debate Clause and that the confidences of the Senator in arranging it are not subject to inquiry "in any other Place" than the Congress.

It is said that though the Senator is immune from questioning as to what he said and did in preparation for the committee hearing and in conducting it, his aides may be questioned in his stead. Such easy circumvention of the Speech or Debate Clause would indeed make it a mockery. The aides and agents such as Beacon Press must be taken as surrogates for the Senator and the confidences of the job that they enjoy are his confidences that the Speech or Debate Clause embraces.

II

The secrecy of documents in the Executive Department has been a bone of contention between it and Congress from the beginning.^[26] Most discussions have [638] centered on the scope of the executive privilege in stamping documents as "secret," "top secret," "confidential," and so on, thus withholding them from the eyes of Congress and the press. The practice has reached large proportions, it being estimated that

(1) Over 30,000 people in the Executive Branch have the power to wield the classification stamp.^[27]

(2) The Department of State, the Department of Defense, and the Atomic Energy Commission have over 20 million classified documents in their files.

(3) Congress appropriates approximately $15 billion annually without most of its members or the public or the press knowing for what purposes the money is to be used.^[28]

The problem looms large as one of separation of [639] powers. Woodrow Wilson wrote about it in terms of the "informing function" of Congress:^[29]

"It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents. Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served; and unless Congress both scrutinize these things and sift them by every form of discussion, the country must remain in embarrassing, crippling ignorance of the very affairs which it is most important that it should understand and direct. The informing function of Congress should be preferred even to its legislative function. The argument is not only that discussed and interrogated administration is the only pure and efficient administration, but, more than that, that the only really self-governing people is that people which discusses and interrogates its administration. The talk on the part of Congress which we sometimes justly condemn is the profitless squabble of words over frivolous bills or selfish party issues. It would be hard to conceive of there being too much talk about the practical concerns and processes of government. Such talk it is which, when earnestly and purposefully conducted, clears the public mind and shapes the demands of public opinion."

Classification of documents is a concern of the Congress. It is, however, no concern of the courts, as I see it, how a [640] document is stamped in an Executive Department or whether a committee of Congress can obtain the use of it. The federal courts do not sit as an ombudsman refereeing the disputes between the other two branches. The federal courts do become vitally involved whenever their power is sought to be invoked either to protect the press against censorship as in New York Times Co. v. United States, 403 U. S. 713, or to protect the press against punishment for publishing "secret" documents or to protect an individual against his disclosure of their contents for any of the purposes of the First Amendment.

Forcing the press to become the Government's co-conspirator in maintaining state secrets is at war with the objectives of the First Amendment. That guarantee was designed in part to ensure a meaningful version of self-government by immersing the people in a "steady, robust, unimpeded, and uncensored flow of opinion and reporting which are continuously subjected to critique, rebuttal, and re-examination." Branzburg v. Hayes, post, at 715 (DOUGLAS, J., dissenting); Brandenburg v. Ohio, 395 U. S. 444; Stanley v. Georgia, 394 U. S. 557, 564; Lamont v. Postmaster General, 381 U. S. 301, 308 (BRENNAN, J., concurring); New York Times Co. v. Sullivan, 376 U. S. 254, 270. As I have said, in dissent, elsewhere, e. g., Branzburg, supra; Kleindienst v. Mandel, post, at 771, that Amendment is aimed at protecting not only speakers and writers but also listeners and readers. The essence of our form of governing was at the heart of Mr. Justice Black's reminder in the Pentagon Papers case that "[t]he press was protected so that it could bare the secrets of government and inform the people." 403 U. S., at 717 (concurring opinion). Similarly, Senator Sam Ervin has observed: "When the people do not know what their government is doing, those who govern are not accountable for their actions—and accountability is basic to the democratic system. By using devices of secrecy, the government [641] attains the power to `manage' the news and through it to manipulate public opinion."^[30] Ramsey Clark as Attorney General expressed a similar sentiment: "If government is to be truly of, by, and for the people, the people must know in detail the activities of government. Nothing so diminishes democracy as secrecy."^[31] And see Meiklejohn, The First Amendment Is An Absolute, 1961 Sup. Ct. Rev. 245; Press Freedoms Under Pressure: Report of the Twentieth Century Fund Task Force on the Government and the Press 109-117 (1972) (background paper by Fred Graham on access to news); M. Johnson, The Government Secrecy Controversy 39-41 (1967).

Jefferson in a letter to Madison, dated December 20, 1787, posed the question "whether peace is best preserved by giving energy to the government, or information to the people," and then answered, "This last is the most certain, and the most legitimate engine of government." 6 Writings of Thomas Jefferson 392 (Memorial ed. 1903).

Madison at the time of the Whiskey Rebellion spoke in the House against a resolution of censure against the groups stirring up the turmoil against that rebellion.

" `If we advert to the nature of Republican Government, we shall find that the censorial power is in the people over the Government, and not in the Government over the people.' " Brant, The Madison Heritage, 35 N. Y. U. L. Rev. 882, 900.

Yet, as has been revealed by such exposes as the Pentagon Papers, the My Lai massacres, the Gulf of Tonkin "incident," and the Bay of Pigs invasion, the Government usually suppresses damaging news but highlights [642] favorable news. In this filtering process the secrecy stamp is the officials' tool of suppression and it has been used to withhold information which in "99 1/2%" of the cases would present no danger to national security.^[32] To refuse to publish "classified" reports would at times relegate a publisher to distributing only the press releases of Government or remaining silent; if he printed only the press releases or "leaks" he would become an arm of officialdom, not its critic. Rather, in my view, when a publisher obtains a classified document he should be free to print it without fear of retribution, unless it contains material directly bearing on future, sensitive planning of the Government.^[33] By that test Beacon Press could with [643] impunity reproduce the Pentagon Papers inasmuch as their content "is all history, not future events. None of it is more recent than 1968." New York Times Co. v. United States, 403 U. S., at 722 n. 3 (concurring opinion).

The late Mr. Justice Harlan in the Pentagon Papers case said that in that situation the courts had only two restricted functions to perform: first, to ascertain whether the subject matter of the dispute lies within the proper compass of the President's constitutional power; and second, to insist that the head of the Executive Department concerned—whether State or Defense—determine if disclosure of the subject matter "would irreparably impair the national security." Beyond those two inquiries, he concluded, the judiciary may not go. Id., at 757-758 (dissenting opinion).

My view is quite different. When the press stands before the court as a suspected criminal, it is the duty of the court to disregard what the prosecution claims is the executive privilege and to acquit the press or overturn the ruling or judgment against it, if the First Amendment and the assertion of the executive privilege conflict. For the executive privilege—nowhere made explicit in the Constitution—is necessarily subordinate to the express commands of the Constitution.

United States v. Curtiss-Wright Corp., 299 U. S. 304, involved the question whether a proclamation issued by the President, pursuant to a Joint Resolution of the [644] Congress, was adequate to sustain an indictment. The Court, in holding that it was, discussed at length the power of the President. The Court said that the power of the President in the field of international relations does not require as a basis an Act of Congress; but it added that his power "like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution." Id., at 320.

When the Executive Branch launches a criminal prosecution against the press, it must do so only under an Act of Congress. Yet Congress has no authority to place the press under the restraints of the executive privilege without "abridging" the press within the meaning of the First Amendment.

In related and analogous situations, federal courts have subordinated the executive privilege to the requirements of a fair trial.

Mr. Chief Justice Marshall in the trial of Aaron Burr ruled "[t]hat the president of the United States may be subpoenaed, and examined as a witness, and required to produce any paper in his possession, is not controverted." United States v. Burr, 25 F. Cas. 187, 191 (No. 14,694) (CC Va. 1807). Yet he "may have sufficient motives for declining to produce a particular paper, and those motives may be such as to restrain the court from enforcing its production." Ibid. A letter to the President, he said, "may relate to public concerns" and not be "forced into public view." Id., at 192. But where the paper was shown "to be essential to the justice of the case," ibid., "the paper [should] be produced, or the cause be continued." Ibid.

Jencks v. United States, 353 U. S. 657, is in that tradition. It was a criminal prosecution for perjury, the telling evidence against the accused being the testimony of Government investigators. The defense asked for contemporary notes made by agents at the time. Refusal [645] was based on their confidential character. We held that to be reversible error.^[34]

"We hold that the criminal action must be dismissed when the Government, on the ground of privilege, elects not to comply with an order to produce, for the accused's inspection and for admission in evidence, relevant statements or reports in its possession of government witnesses touching the subject matter of their testimony at the trial. Accord, Roviaro v. United States, 353 U. S. 53, 60-61. The burden is the Government's, not to be shifted to the trial judge, to decide whether the public prejudice of allowing the crime to go unpunished is greater than that attendant upon the possible disclosure of state secrets and other confidential information in the Government's possession." Id., at 672.

Congress enacted the so-called Jencks Act, 18 U. S. C. § 3500, regulating the use of Government documents in criminal prosecutions. We sustained that Act. Scales v. United States, 367 U. S. 203, 258. Under the Act a defendant "on trial in a federal criminal prosecution is entitled, for impeachment purposes, to relevant and [646] competent statements of a government witness in possession of the Government touching the events or activities as to which the witness has testified at the trial. . . . The command of the statute is thus designed to further the fair and just administration of criminal justice, a goal of which the judiciary is the special guardian." Campbell v. United States, 365 U. S. 85, 92. And see Clancy v. United States, 365 U. S. 312.

The prosecution often dislikes to make public the identity of the informer on whose information its case rests. But his identity must be disclosed where his testimony is material to the trial. Roviaro v. United States, 353 U. S. 53. In other words, the desire for Government secrecy does not override the demands for a fair trial. And see Scher v. United States, 305 U. S. 251, 254. The constitutional demands for a fair trial, implicit in the concept of due process, In re Murchison, 349 U. S. 133, 136, override the Government's desire for secrecy, whether the identity of an informer or the executive privilege be involved. And see Smith v. Illinois, 390 U. S. 129.

The requirements of the First Amendment are not of lesser magnitude. They override any claim to executive privilege. As stated in United States v. Curtiss-Wright Corp., supra, the class of executive privilege "like every other governmental power, must be exercised in sub-ordination to the applicable provisions of the Constitution." 299 U. S., at 320.

III

Aside from the question of the extent to which publishers can be penalized for printing classified documents, surely the First Amendment protects against all inquiry into the dissemination of information which, although once classified, has become part of the public domain.

To summon Beacon Press through its officials before the grand jury and to inquire into why it did what it did [647] and its publication plans is "abridging" the freedom of the press contrary to the command of the First Amendment. In light of the fact that these documents were part of the official Senate record,^[35] Beacon Press has violated no valid law, and the grand jury's scrutiny of it reduces to "[e]xposure purely for the sake of exposure." Uphaus v. Wyman, 360 U. S., at 82 (BRENNAN, J., dissenting). As in United States v. Rumely, 345 U. S. 41, where a legislative committee inquired of a publisher of political tracts as to its customers' identities, "[i]f the present inquiry were sanctioned, the press would be subjected to harassment that in practical effect might be as serious as censorship." Id., at 57 (concurring opinion). Under our Constitution the Government has no surveillance over the press. That includes, as we held in New York Times Co. v. United States, 403 U. S. 713, the prohibition against prior restraints. Yet criminal punishment for or investigations of what the press publishes, though a different species of abridgment, is nonetheless within the ban of the First Amendment.

The story of the Pentagon Papers is a chronicle of suppression of vital decisions to protect the reputations and political hides of men who worked an amazingly successful scheme of deception on the American people. They were successful not because they were astute but because the press had become a frightened, regimented, submissive instrument, fattening on favors from those in power and forgetting the great tradition of reporting. To allow the press further to be cowed by grand [648] jury inquiries and prosecution is to carry the concept of "abridging" the press to frightening proportions.

What would be permissible if Beacon Press "stole" the Pentagon Papers is irrelevant to today's decision. What Beacon Press plans to publish is matter introduced into a public record by a Senator acting under the full protection of the Speech or Debate Clause.^[36] In light of the command of the First Amendment we have no choice but to rule that here government, not the press, is lawless.

I would affirm the judgment of the Court of Appeals except as to Beacon Press, in which case I would reverse.

MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS, and MR. JUSTICE MARSHALL, join, dissenting.

The facts of this litigation, which are detailed by the Court, and the objections to overclassification of documents by the Executive, detailed by my Brother DOUGLAS, need not be repeated here. My concern is with the narrow scope accorded the Speech or Debate Clause by today's decision. I fully agree with the Court that a Congressman's immunity under the Clause must also be extended to his aides if it is to be at all effective. The complexities and press of congressional business make it impossible for a Member to function without the close cooperation of his legislative assistants. Their role as his agents in the performance of official duties requires that they share his immunity for those acts. The scope of that immunity, however, is as important as the persons to whom it extends. In my view, today's decision so restricts the privilege of speech or debate as to endanger the continued performance of legislative tasks that are vital to the workings of our democratic system.

[649] I

In holding that Senator Gravel's alleged arrangement with Beacon Press to publish the Pentagon Papers is not shielded from extra-senatorial inquiry by the Speech or Debate Clause, the Court adopts what for me is a far too narrow view of the legislative function. The Court seems to assume that words spoken in debate or written in congressional reports are protected by the Clause, so that if Senator Gravel had recited part of the Pentagon Papers on the Senate floor or copied them into a Senate report, those acts could not be questioned "in any other Place." Yet because he sought a wider audience, to publicize information deemed relevant to matters pending before his own committee, the Senator suddenly loses his immunity and is exposed to grand jury investigation and possible prosecution for the republication. The explanation for this anomalous result is the Court's belief that "Speech or Debate" encompasses only acts necessary to the internal deliberations of Congress concerning proposed legislation. "Here," according to the Court, "private publication by Senator Gravel through the cooperation of Beacon Press was in no way essential to the deliberations of the Senate." Ante, at 625. Therefore, "the Senator's arrangements with Beacon Press were not part and parcel of the legislative process." Id., at 626.

Thus, the Court excludes from the sphere of protected legislative activity a function that I had supposed lay at the heart of our democratic system. I speak, of course, of the legislator's duty to inform the public about matters affecting the administration of government. That this "informing function" falls into the class of things "generally done in a session of the House by one of its members in relation to the business before it," Kilbourn v. Thompson, 103 U. S. 168, 204 (1881), was explicitly acknowledged by the Court in Watkins [650] v. United States, 354 U. S. 178 (1957). In speaking of the "power of the Congress to inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government," the Court noted that "[f]rom the earliest times in its history, the Congress has assiduously performed an `informing function' of this nature." Id., at 200 n. 33.

We need look no further than Congress itself to find evidence supporting the Court's observation in Watkins. Congress has provided financial support for communications between its Members and the public, including the franking privilege for letters, telephone and telegraph allowances, stationery allotments, and favorable prices on reprints from the Congressional Record. Congressional hearings, moreover, are not confined to gathering information for internal distribution, but are often widely publicized, sometimes televised, as a means of alerting the electorate to matters of public import and concern. The list is virtually endless, but a small sampling of contemporaneous hearings of this kind would certainly include the Kefauver hearings on organized crime, the 1966 hearings on automobile safety, and the numerous hearings of the Senate Foreign Relations Committee on the origins and conduct of the war in Vietnam. In short, there can be little doubt that informing the electorate is a thing "generally done" by the Members of Congress "in relation to the business before it."

The informing function has been cited by numerous students of American politics, both within and without the Government, as among the most important responsibilities of legislative office. Woodrow Wilson, for example, emphasized its role in preserving the separation of powers by ensuring that the administration of public policy by the Executive is understood by the legislature and electorate:

"It is the proper duty of a representative body to look diligently into every affair of government [651] and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents. Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served; and unless Congress both scrutinize these things and sift them by every form of discussion, the country must remain in embarrassing, crippling ignorance of the very affairs which it is most important that it should understand and direct." Congressional Government 303 (1885).

Others have viewed the give-and-take of such communication as an important means of educating both the legislator and his constituents:

"With the decline of Congress as an original source of legislation, this function of keeping the government in touch with public opinion and of keeping public opinion in touch with the conduct of the government becomes increasingly important. Congress no longer governs the country; the Administration in all its ramifications actually governs. But Congress serves as a forum through which public opinion can be expressed, general policy discussed, and the conduct of governmental affairs exposed and criticized." The Reorganization of Congress, A Report of the Committee on Congress of the American Political Science Association 14 (1945).

Though I fully share these and related views on the educational values served by the informing function, there is yet another, and perhaps more fundamental, interest at stake. It requires no citation of authority to state that public concern over current issues—the war, race relations, governmental invasions of privacy— [652] has transformed itself in recent years into what many believe is a crisis of confidence, in our system of government and its capacity to meet the needs and reflect the wants of the American people. Communication between Congress and the electorate tends to alleviate that doubt by exposing and clarifying the workings of the political system, the policies underlying new laws and the role of the Executive in their administration. To the extent that the informing function succeeds in fostering public faith in the responsiveness of Government, it is not only an "ordinary" task of the legislator but one that is essential to the continued vitality of our democratic institutions.

Unlike the Court, therefore, I think that the activities of Congressmen in communicating with the public are legislative acts protected by the Speech or Debate Clause. I agree with the Court that not every task performed by a legislator is privileged; intervention before Executive departments is one that is not. But the informing function carries a far more persuasive claim to the protections of the Clause. It has been recognized by this Court as something "generally done" by Congressmen, the Congress itself has established special concessions designed to lower the cost of such communication, and, most important, the function furthers several well-recognized goals of representative government. To say in the face of these facts that the informing function is not privileged merely because it is not necessary to the internal deliberations of Congress is to give the Speech or Debate Clause an artificial and narrow reading unsupported by reason.

Nor can it be supported by history. There is substantial evidence that the Framers intended the Speech or Debate Clause to cover all communications from a Congressman to his constituents. Thomas Jefferson clearly expressed that view of legislative privilege in a [653] case involving Samuel Cabell, Congressman from Virginia. In 1797 a federal grand jury in Virginia investigated the conduct of several Congressmen, including Cabell, in sending newsletters to constituents critical of the administration's policy in the war with France. The grand jury found that the Congressmen had endeavored "at a time of real public danger, to disseminate unfounded calumnies against the happy government of the United States, and thereby to separate the people therefrom; and to increase or produce a foreign influence, ruinous to the peace, happiness, and independence of these United States." Jefferson immediately drafted a long essay signed by himself and several citizens of Cabell's district, condemning the grand jury investigation as a blatant violation of the congressional privilege. Revised and joined by James Madison, the protest was forwarded to the Virginia House of Delegates. It reads in part as follows:

"[T]hat in order to give to the will of the people the influence it ought to have, and the information which may enable them to exercise it usefully, it was a part of the common law, adopted as the law of this land, that their representatives, in the discharge of their functions, should be free from the cognizance or coercion of the co-ordinate branches, Judiciary and Executive; and that their communications with their constituents should of right, as of duty also, be free, full, and unawed by any: that so necessary has this intercourse been deemed in the country from which they derive principally their descent and laws, that the correspondence between the representative and constituent is privileged there to pass free of expense through the channel of the public post, and that the proceedings of the legislature have been known to be arrested and suspended at times until the Representatives [654] could go home to their several counties and confer with their constituents.

.....

"That when circumstances required that the ancient confederation of this with the sister States, for the government of their common concerns, should be improved into a more regular and effective form of general government, the same representative principle was preserved in the new legislature, one branch of which was to be chosen directly by the citizens of each State, and the laws and principles remained unaltered which privileged the representative functions, whether to be exercised in the State or General Government, against the cognizance and notice of the co-ordinate branches, Executive and Judiciary; and for its safe and convenient exercise, the inter-communication of the representative and constituent has been sanctioned and provided for through the channel of the public post, at the public expense.

.....

"That the grand jury is a part of the Judiciary, not permanent indeed, but in office, pro hac vice and responsible as other judges are for their actings and doings while in office: that for the Judiciary to interpose in the legislative department between the constituent and his representative, to control them in the exercise of their functions or duties towards each other, to overawe the free correspondence which exists and ought to exist between them, to dictate what communications may pass between them, and to punish all others, to put the representative into jeopardy of criminal prosecution, of vexation, expense, and punishment before the Judiciary, if his communications, public or private, do not exactly square with their ideas of fact or right, or with their designs of wrong, is to put the legislative department [655] under the feet of the Judiciary, is to leave us, indeed, the shadow, but to take away the substance of representation, which requires essentially that the representative be as free as his constituents would be, that the same interchange of sentiment be lawful between him and them as would be lawful among themselves were they in the personal transaction of their own business; is to do away the influence of the people over the proceedings of their representatives by excluding from their knowledge, by the terror of punishment, all but such information or misinformation as may suit their own views; and is the more vitally dangerous when it is considered that grand jurors are selected by officers nominated and holding their places at the will of the Executive . . . ; and finally, is to give to the Judiciary, and through them to the Executive, a complete preponderance over the legislature rendering ineffectual that wise and cautious distribution of powers made by the constitution between the three branches, and subordinating to the other two that branch which most immediately depends on the people themselves, and is responsible to them at short periods." 8 The Works of Thomas Jefferson 322-327 (Ford ed. 1904).

Jefferson's protest is perhaps the most significant and certainly the most cogent analysis of the privileged nature of communication between Congressman and public. Its comments on the history, purpose, and scope of the Clause leave no room for the notion that the Executive or Judiciary can in any way question the contents of that dialogue. Nor was Jefferson alone among the Framers in that view. Aside from Madison, who joined in the protest, James Wilson took the position that a member of Congress "should enjoy the fullest liberty of speech, and . . . should be protected from [656] the resentment of every one, however powerful, to whom the exercise of that liberty may occasion offence." 1 Works of James Wilson 421 (R. McCloskey ed. 1967). Wilson, a member of the Committee responsible for drafting the Speech or Debate Clause, stated in plainest terms his belief in the duty of Congressmen to inform the people about proceedings in the Congress:

"That the conduct and proceedings of representatives should be as open as possible to the inspection of those whom they represent, seems to be, in republican government, a maxim, of whose truth or importance the smallest doubt cannot be entertained. That, by a necessary consequence, every measure, which will facilitate or secure this open communication of the exercise of delegated power, should be adopted and patronised by the constitution and laws of every free state, seems to be another maxim, which is the unavoidable result of the former." Id., at 422.

Wilson's statements, like those of Jefferson and Madison, reflect a deep conviction of the Framers, that self-government can succeed only when the people are informed by their representatives, without interference by the Executive or Judiciary, concerning the conduct of their agents in government. That conviction is no less valid today than it was at the time of our founding. I would honor the clear intent of the Framers and extend to the informing function the protections embodied in the Speech or Debate Clause.

The Court, however, offers not a shred of evidence concerning the Framers' intent, but relies instead on the English view of legislative privilege to support its interpretation of the Clause. Like the Court itself, ante, at 623-624, n. 14, I have some doubt concerning the relevance of English authority to this case, particularly authority post-dating the adoption of our Constitution. But [657] in any event it is plain that the Court has misread the history on which it relies. The Speech or Debate Clause of the English Bill of Rights was at least in part the product of a struggle between Parliament and Crown over the very type of activity involved in this litigation. During the reign of Charles II, the House of Commons received a number of reports about an alleged plot between the Crown and the King of France to restore Catholicism as the established religion of England. The most famous of these reports, Dangerfield's Narrative, was entered into the Commons Journal and then republished by order of the Speaker of the House, Sir William Williams, with the consent of Commons. In 1686, after James II came to the throne, informations charging libel were filed against Williams in King's Bench. Despite the arguments of his attorney, Sir Robert Atkyns, that the publication was necessary to the "counselling" and "enquiring" functions of Parliament, Williams' plea of privilege was rejected and he was fined £10,000. Shortly after Williams' conviction James II was sent into exile, and a committee was appointed by the House of Commons to report upon "such things as are absolutely necessary for securing the Laws and Liberties of the Nation." 9 Debates of the House of Commons, coll. by A. Grey, 1763, p. 37. In reporting to the House, the chairman of the committee stated that the provision for freedom of speech and debate was included "for the sake of one . . . Sir William Williams, who was punished out of Parliament for what he had done in Parliament." Id., at 81. Following consultation with the House of Lords, that provision was included as part of the English Bill of Rights, and the judgment against Williams was declared by Commons "illegal and subversive of the freedom of parliament." 1 W. Townsend, Memoirs of the House of Commons 414 (2d ed. 1844).

Although the origins of the Speech or Debate Clause in [658] England can thus be traced to a case involving republication, the Court, citing Stockdale v. Hansard, 9 Ad. & E. 1, 112 Eng. Rep. 1112 (K. B. 1839), says that "English legislative privilege was not viewed as protecting republication of an otherwise immune libel on the floor of the House." Ante, at 622. That conclusion reflects an erroneous reading of precedent. Stockdale did state that "if the calumnious or inflammatory speeches should be reported and published, the law will attach responsibility on the publisher." Id., at 114, 112 Eng. Rep., at 1156. But Stockdale concerned only the publisher's liability, not that of a member of Parliament; thus, it has little bearing on the instant case. Furthermore, contrary to the Court's assertion, ante, at 623-624, n. 14, even the narrow result of Stockdale was repudiated 30 years later in Wason v. Walter, L. R. 4 Q. B. 73 (1868), for reasons strikingly similar to those expressed by Jefferson in his protest.^[37] In [659] my view, therefore, the English precedent, if relevant at all, supports Senator Gravel's position here.

Thus, from the standpoint of function or history, it is plain that Senator Gravel's dissemination of material, [660] placed by him in the record of a congressional hearing, is itself legislative activity protected by the privilege of speech or debate. Whether or not that privilege protects the publisher from prosecution or the Senator from senatorial discipline, it certainly shields the Senator from any grand jury inquiry about his part in the publication. As we held in United States v. Johnson, 383 U. S. 169 (1966), neither a Congressman, nor his aides, nor third parties may be made to testify concerning privileged acts or their motives. That immunity, which protects legislators "from deterrents to the uninhibited discharge of their legislative duty," Tenney v. Brandhove, 341 U. S. 367, 377 (1951), is the essence of the Clause, designed not for the legislators' "private indulgence but for the public good." Id., at 377.

That privilege, moreover, may not be defeated merely because a court finds that the publication was irregular or the material irrelevant to legislative business. Legislative immunity secures "to every member exemption from prosecution, for every thing said or done by him, as a representative, in the exercise of the functions of that office . . . whether the exercise was regular according to the rules of the house, or irregular and against their rules." Coffin v. Coffin, 4 Mass. 1, 27 (1808). Thus, if the republication of this committee record was unauthorized or even prohibited by the Senate rules, it [661] is up to the Senate, not the Executive or Judiciary, to fashion the appropriate sanction to discipline Senator Gravel.

Similarly, the Government cannot strip Senator Gravel of the immunity by asserting that his conduct "did not relate to any pending Congressional business." Brief for United States 41. The Senator has stated that his hearing on the Pentagon Papers had a direct bearing on the work of his Subcommittee on Buildings and Grounds, because of the effect of the Vietnam war on the domestic economy and the lack of sufficient federal funds to provide adequate public facilities. If in fact the Senator is wrong in this contention, and his conduct at the hearing exceeded the subcommittee's jurisdiction, then again it is the Senate that must call him to task. This Court has permitted congressional witnesses to defend their refusal to answer questions on the ground of nongermaneness. Watkins v. United States, 354 U. S. 178 (1957). Here, however, it is the Executive that seeks the aid of the judiciary, not to protect individual rights, but to extend its power of inquiry and interrogation into the privileged domain of the legislature. In my view the Court should refuse to turn the freedom of speech or debate on the Government's notions of legislative propriety and relevance. We would weaken the very structure of our constitutional system by becoming a partner in this assault on the separation of powers.

Whether the Speech or Debate Clause extends to the informing function is an issue whose importance goes beyond the fate of a single Senator or Congressman. What is at stake is the right of an elected representative to inform, and the public to be informed, about matters relating directly to the workings of our Government. The dialogue between Congress and people has been recognized, from the days of our founding, as one of the necessary elements of a representative system. [662] We should not retreat from that view merely because, in the course of that dialogue, information may be revealed that is embarrassing to the other branches of government or violates their notions of necessary secrecy. A Member of Congress who exceeds the bounds of propriety in performing this official task may be called to answer by the other Members of his chamber. We do violence to the fundamental concepts of privilege, however, when we subject that same conduct to judicial scrutiny at the instance of the Executive.^[38] The threat of "prosecution by an unfriendly executive and conviction by a hostile judiciary," United States v. Johnson, 383 U. S., at 179, that the Clause was designed to avoid, can only lead to timidity in the performance of this vital function. The Nation as a whole benefits from the congressional investigation and exposure of official corruption and deceit. It likewise suffers when that exposure is replaced by muted criticism, carefully hushed behind congressional walls.

II

Equally troubling in today's decision is the Court's refusal to bar grand jury inquiry into the source of documents received by the Senator and placed by him in the hearing record. The receipt of materials for use in a congressional hearing is an integral part of the preparation for that legislative act. In United States v. Johnson, supra, the Court acknowledged the privileged nature of such preparatory steps, holding that they, like the act itself and its motives, must be shielded from scrutiny by the Executive and Judiciary. That holding merely recognized the obvious—that speeches, [663] hearings, and the casting of votes require study and planning in advance. It would accomplish little toward the goal of legislative freedom to exempt an official act from intimidating scrutiny, if other conduct leading up to the act and intimately related to it could be deterred by a similar threat. The reasoning that guided that Court in Johnson is no less persuasive today, and I see no basis, nor does the Court offer any, for departing from it here. I would hold that Senator Gravel's receipt of the Pentagon Papers, including the name of the person from whom he received them, may not be the subject of inquiry by the grand jury.

I would go further, however, and also exclude from grand jury inquiry any knowledge that the Senator or his aides might have concerning how the source himself first came to possess the Papers. This immunity, it seems to me, is essential to the performance of the informing function. Corrupt and deceitful officers of government do not often post for public examination the evidence of their own misdeeds. That evidence must be ferreted out, and often is, by fellow employees and subordinates. Their willingness to reveal that information and spark congressional inquiry may well depend on assurances from their contact in Congress that their identities and means of obtaining the evidence will be held in strictest confidence. To permit the grand jury to frustrate that expectation through an inquiry of the Congressman and his aides can only dampen the flow of information to the Congress and thus to the American people. There is a similar risk, of course, when the Member's own House requires him to break the confidence. But the danger, it seems to me, is far less if the Member's colleagues, and not an "unfriendly executive" or "hostile judiciary," are charged with evaluating the propriety of his conduct. In any event, assuming that a Congressman can be required to reveal the [664] sources of his information and the methods used to obtain that information, that power of inquiry, as required by the Clause, is that of the Congressman's House, and of that House only.

I respectfully dissent.

[1] Together with No. 71-1026, United States v. Gravel, also on certiorari to the same court.

[2] The District Court permitted Senator Gravel to intervene in the proceeding on Dr. Rodberg's motion to quash the subpoena ordering his appearance before the grand jury and accepted motions from Gravel to quash the subpoena and to specify the exact nature of the questions to be asked Rodberg. The Government contested Gravel's standing to appeal the trial court's disposition of these motions on the ground that, had the subpoena been directed to the Senator, he could not have appealed from a denial of a motion to quash without first refusing to comply with the subpoena and being held in contempt. United States v. Ryan, 402 U. S. 530 (1971); Cobbledick v. United States, 309 U. S. 323 (1940). The Court of Appeals, United States v. Doe, 455 F. 2d 753, 756-757 (CA1 1972), held that because the subpoena was directed to third parties, who could not be counted on to risk contempt to protect intervenor's rights, Gravel might be "powerless to avert the mischief of the order" if not permitted to appeal, citing Perlman v. United States, 247 U. S. 7, 13 (1918). The United States does not here challenge the propriety of the appeal.

[3] Dr. Rodberg, who filed his own motion to quash the subpoena directing his appearance and testimony, appeared as amicus curiae both in the Court of Appeals and this Court. Technically, Rodberg states, he is a party to No. 71-1026, insofar as the Government appeals from the protective order entered by the District Court. However, since Gravel intervened, Rodberg does not press the point. Brief of Leonard S. Rodberg as Amicus Curiae 2 n. 2.

[4] The District Court found "that `as personal assistant to movant [Gravel], Dr. Rodberg assisted movant in preparing for disclosure and subsequently disclosing to movant's colleagues and constituents, at a hearing of the Senate Subcommittee on Public Buildings and Grounds, the contents of the so-called "Pentagon Papers," which were critical of the Executive's conduct in the field of foreign relations.' " United States v. Doe, 332 F. Supp. 930, 932 (Mass. 1971).

[5] Beacon Press is a division of the Unitarian Universalist Association, which appeared here as amicus curiae in support of the position taken by Senator Gravel.

[6] Gravel so alleged in his motion to intervene in the Webber matter and to quash the subpoena ordering Webber to appear and testify. App. 15-18.

[7] The Government maintained that Congress does not enjoy unlimited power to conduct business and that judicial review has often been exercised to curb extra-legislative incursions by legislative committees, citing Watkins v. United States, 354 U. S. 178 (1957); McGrain v. Daugherty, 273 U. S. 135 (1927); Hentoff v. Ichord, 318 F. Supp. 1175 (DC 1970), at least where such incursions are unrelated to a legitimate legislative purpose. It was alleged that Gravel had "convened a special, unauthorized, and untimely meeting of the Senate Subcommittee on Public Works (at midnight on June 29, 1971), for the purpose of reading the documents and thereafter placed all unread portions in the subcommittee record, with Dr. Rodberg soliciting publication following the meeting." App. 9. The District Court rejected the contention: "Senator Gravel has suggested that the availability of funds for the construction and improvement of public buildings and grounds has been affected by the necessary costs of the war in Vietnam and that therefore the development and conduct of the war is properly within the concern of his subcommittee. The court rejects the Government's argument without detailed consideration of the merits of the Senator's position, on the basis of the general rule restricting judicial inquiry into matters of legislative purpose and operations." United States v. Doe, 332 F. Supp., at 935. Cases such as Watkins, supra, were distinguished on the ground that they concerned the power of Congress under the Constitution: "It has not been suggested by the Government that the Subcommittee itself is unauthorized, nor that the war in Vietnam is an issue beyond the purview of congressional debate and action. Also, the individual rights at stake in these proceedings are not those of a witness before a congressional committee or of a subject of a committee's investigation, but only those of a congressman and member of his personal staff who claim `intimidation by the executive.' " 332 F. Supp., at 936.

[8] The District Court thought that Rodberg could be questioned concerning his own conduct prior to joining the Senator's staff and concerning the activities of third parties with whom Rodberg and Gravel dealt. Id., at 934.

[9] The protective order entered by the District Court provided as follows:

"(1) No witness before the grand jury currently investigating the release of the Pentagon Papers may be questioned about Senator Mike Gravel's conduct at a meeting of the Subcommittee on Public Buildings and Grounds on June 29, 1971 nor about things done by the Senator in preparation for and intimately related to said meeting.

"(2) Dr. Leonard S. Rodberg may not be questioned about his own actions on June 29, 1971 after having been engaged as a member of Senator Gravel's personal staff to the extent that they were taken at the Senator's direction either at a meeting of the Subcommittee on Public Buildings and Grounds or in preparation for and intimately related to said meeting." Id., at 938.

[10] The Court of Appeals thought third parties could be questioned as to their own conduct regarding the Pentagon Papers, "including their dealing with intervenor or his aides." United States v. Doe, 455 F. 2d at 761. The court found no merit in the claim that such parties should be shielded from questioning under the Speech or Debate Clause concerning their own wrongful acts, even if such questioning may bring the Senator's conduct into question. Id., at 758 n. 2.

[11] Williamson, United States Congressman, had been found guilty of conspiring to commit subornation of perjury in connection with proceedings for the purchase of public land. He objected to the court's passing sentence upon him and particularly protested that any imprisonment would deprive him of his constitutional right to "go to, attend at and return from the ensuing session of Congress." Williamson v. United States, 207 U. S. 425, 433 (1908). The Court rejected the contention that the Speech or Debate Clause freed legislators from accountability for criminal conduct.

[12] In Kilbourn v. Thompson, 103 U. S. 168, 198 (1881), the Court noted a second example, used by Mr. Justice Coleridge in Stockdale v. Hansard, 9 Ad. & E. 1, 225-226, 112 Eng. Rep. 1112, 1196-1197 (K. B. 1839): " `Let me suppose, by way of illustration, an extreme case; the House of Commons resolves that any one wearing a dress of a particular manufacture is guilty of a breach of privilege, and orders the arrest of such persons by the constable of the parish. An arrest is made and action brought, to which the order of the House is pleaded as a justification. . . . In such a case as the one supposed, the plaintiff's counsel would insist on the distinction between power and privilege; and no lawyer can seriously doubt that it exists: but the argument confounds them, and forbids us to enquire, in any particular case, whether it ranges under the one or the other. I can find no principle which sanctions this.' "

[13] Senator Gravel is willing to assume that if he personally had "stolen" the Pentagon Papers, and that act were a crime, he could be prosecuted, as could aides or other assistants who participated in the theft. Consolidated Brief for Senator Gravel 93.

[14] It follows that an aide's claim of privilege can be repudiated and thus waived by the Senator.

[15] Stockdale extensively reviewed the precedents and their interplay with the privilege so forcefully recognized in the Bill of Rights of 1689: "That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament." 1 W. & M., Sess. 2, c. 2. From these cases, including Rex v. Creevey, 1 M. & S. 273, 105 Eng. Rep. 102 (K. B. 1813); Rex v. Wright, 8 T. R. 293, 101 Eng. Rep. 1396 (K. B. 1799); Rex v. Abingdon, 1 Esp. 226, 170 Eng. Rep. 337 (N. P. 1794); Rex v. Williams, 2 Show. K. B. 471, 89 Eng. Rep. 1048 (1686), it is apparent that to the extent English precedent is relevant to the Speech or Debate Clause there is little, if any, support for Senator Gravel's position with respect to republication. Parliament reacted to Stockdale v. Hansard by adopting the Parliamentary Papers Act of 1840, 3 & 4 Vict., c. 9, which stayed proceedings in all cases where it could be shown that publication was by order of a House of Parliament and was a bona fide report, printed and circulated without malice. See generally C. Wittke, The History of English Parliamentary Privilege (1921).

Gravel urges that Stockdale v. Hansard was later repudiated in Wason v. Walter, L. R. 4 Q. B. 73 (1868), which held a proprietor immune from civil libel for an accurate republication of a debate in the House of Lords. But the immunity established in Wason was not founded on parliamentary privilege, id., at 84, but upon analogy to the privilege for reporting judicial proceedings. Id., at 87-90. The Wason court stated its "unhesitating and unqualified adhesion" to the "masterly judgments" rendered in Stockdale and characterized the question before it as whether republication, quite apart from any assertion of parliamentary privilege, was "in itself privileged and lawful." Id., at 86-87. That the privileges for nonmalicious republication of parliamentary and judicial proceedings—later established as qualified—were construed as coextensive in all respects, id., at 95, further underscores the inappositeness of reading Wason as based upon parliamentary privilege that, like the Speech or Debate Clause, is absolute. Much later Holdsworth was to comment that at the time of Wason the distinction between absolute and qualified privilege had not been worked out and that the "part played by malice in the tort and crime of defamation" probably helped retard recognition of a qualified privilege. 8 W. Holdsworth, History of English Law 377 (1926).

[16] The Court in Tenney v. Brandhove, 341 U. S. 367, 376-377 (1951), was equally clear that "legislative activity" is not all-encompassing, nor may its limits be established by the Legislative Branch: "Legislatures may not of course acquire power by an unwarranted extension of privilege. The House of Commons' claim of power to establish the limits of its privilege has been little more than a pretense since Ashby v. White, 2 Ld. Raym. 938, 3 id. 320. This Court has not hesitated to sustain the rights of private individuals when it found Congress was acting outside its legislative role. Kilbourn v. Thompson, 103 U. S. 168; Marshall v. Gordon, 243 U. S. 521; compare McGrain v. Daugherty, 273 U. S. 135, 176."

[17] The sole constitutional claim asserted here is based on the Speech or Debate Clause. We need not address issues that may arise when Congress or either House, as distinguished from a single Member, orders the publication and/or public distribution of committee hearings, reports, or other materials. Of course, Art. I, § 5, cl. 3, requires that each House "keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy . . . ." This Clause has not been the subject of extensive judicial examination. See Field v. Clark, 143 U. S. 649, 670-671 (1892); United States v. Ballin, 144 U. S. 1, 4 (1892).

[18] The Court of Appeals held that the Speech or Debate Clause protects aides as well as Senators and that while third parties may be questioned about the source of a Senator's information, neither aide nor Senator need answer such inquiries. The Government's position is that the aide has no protection under the Speech or Debate Clause and may be questioned even about legislative acts. A contrary ruling, the Government fears, would invite great abuse. On the other hand, Gravel contends that the Court of Appeals insufficiently protected the Senator both with respect to the matter of republication and with respect to the scope of inquiry permitted the grand jury in questioning third-party witnesses with whom the Senator and his aides dealt. Hence, we are of the view that both the question of the aide's immunity and the question of the extent of that immunity are properly before us in this case. And surely we are not bound by the Government's view of the scope of the privilege.

[19] Having established that neither the Senator nor Rodberg is subject to liability for what occurred at the subcommittee hearing, we perceive no basis for inquiry of either Rodberg or third parties on this subject. If it proves material to establish for the record the fact of publication at the subcommittee hearing, which seems undisputed, the public record of the hearing would appear sufficient for this purpose. We do not intend to imply, however, that in no grand jury investigations or criminal trials of third parties may third-party witnesses be interrogated about legislative acts of Members of Congress. As for inquiry of Rodberg about third-party crimes, we are quite sure that the District Court has ample power to keep the grand jury proceedings within proper bounds and to foreclose improvident harassment and fishing expeditions into the affairs of a Member of Congress that are no proper concern of the grand jury or the Executive Branch.

[20] As stated in its petition for certiorari, the Government asked us to consider:

"Whether Article 1, Section 6, of the Constitution providing that `. . . for any Speech or Debate in either House,' the Senators and Representatives `shall not be questioned in any other Place' bars a grand jury from questioning aides of members of Congress and other persons about matters that may touch on activities of a member of Congress which are protected `Speech or Debate.' "

The Government also asked us to consider:

"Whether an aide of a member of Congress has a common law privilege not to testify before a grand jury concerning private republication of material which his Senator-employer had introduced into the record of a Senate subcommittee."

We granted certiorari on both questions. 405 U. S. 916.

[21] See also ante, at 622, 628.

[22] See, e. g., Wilson v. United States, 221 U. S. 361; Hendricks v. United States, 223 U. S. 178; United States v. Johnson, 319 U. S. 503. See generally Holt v. United States, 218 U. S. 245; Costello v. United States, 350 U. S. 359.

[23] During oral argument, the Solicitor General virtually conceded, in the course of arguing that aides should not enjoy the same testimonial privilege as Congressmen, that a Senator could not be called before the grand jury to testify about the sources of his information:

"Q. Mr. Solicitor, am I correct that you wouldn't be able to question the Senator as to where he got the papers from?

"A. Oh, Mr. Justice, we are not able to question the Senator about anything insofar as it relates to speech or debate.

"Q. Well, this was related, you agree, to speech and debate?

"A. I am not contending to the contrary. . . ." Tr. of Oral Arg., Apr. 20, 1972, pp. 27-28.

The following exchange also took place:

"Q. You can't ask a Senator where you got the material you used in your speech.

"A. Yes, Mr. Justice.

"Q. You can't.

"A. Yes." Id., at 29.

At another point in the oral argument, the Solicitor General said that even when a Senator or Representative has knowledge of crime as a result of legislative acts "[t]hey can't even be required to respond to questions with respect to their speeches and debates. That is a great and historic privilege which ought to be maintained which I fully support but which does not extend to any other persons than Senators and Representatives." Id., at 32.

[24] The Speech or Debate Clause included in Art. I, § 6, cl. 1, of the Constitution provides as respects Senators and Representatives that "for any Speech or Debate in either House, they shall not be questioned in any other Place."

[25] And see United States v. Johnson, 383 U. S. 169, 172, 177; and Tenney v. Brandhove, 341 U. S. 367, 376.

[26] See Developments In The Law—The National Security Interest and Civil Liberties, 85 Harv. L. Rev. 1130, 1207-1215 (1972); Note, The Right of Government Employees to Furnish Information to Congress: Statutory and Constitutional Aspects, 57 Va. L. Rev. 885-887 (1971); Berger, Executive Privilege v. Congressional Inquiry, 12 U. C. L. A. L. Rev. 1044 (1965); Schwartz, Executive Privilege and Congressional Investigatory Power, 47 Calif. L. Rev. 3 (1959); Executive Privilege: The Withholding of Information by the Executive, Hearing on S. 1125 before the Subcommittee on Separation of Powers of the Senate Committee on the Judiciary, 92d Cong., 1st Sess. (1971). There is no express statutory authority for the classification procedure used currently by the bureaucracies, although it has been claimed that Congress has recognized it in such measures as the exemptions from the disclosure requirements of the Freedom of Information Act, 5 U. S. C. § 552 (b) and the espionage laws, 18 U. S. C. §§ 792-799. Rather, the classification regime has been implemented through a series of executive orders described in Developments In The Law, supra, at 1192-1198. It has also been claimed that several sections of Art. II (such as the designation of the President as Commander in Chief of the Army and Navy) confer upon the Executive an inherent power to classify documents. See Report of the Commission on Government Security, S. Doc. No. 64, 85th Cong., 1st Sess., 158 (1957).

[27] Hearings on S. 1125, supra, n. 3, at 517-518. One estimate of the number of officials who can classify documents is even higher. In the Department of Defense alone, 803 persons have the authority to classify documents Top Secret; 7,687 have permission to stamp them Secret, and 31,048 have the authorization to denominate papers Confidential. United States Government Information Policies and Practices—The Pentagon Papers, Hearings before a Subcommittee of the House Committee on Government Operations, 92d Cong., 1st Sess., pt. 2, p. 599 (statement of David Cooke, Deputy Assistant Secretary of Defense).

[28] Senator Fulbright, chairman of the Senate Foreign Relations Committee, recently testified that his committee had been so unsuccessful in obtaining accurate information about the Vietnam war from the Executive Branch that it was required to hire its own investigators and send them to Southeast Asia. Hearings on S. 1125, supra, n. 3, at 206.

[29] Congressional Government 303-304 (1885).

[30] Secrecy in a Free Society, 213 Nation 454, 456 (1971).

[31] Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act, 20 Ad. L. Rev. 263, 264 (1967).

[32] United States Government Information Policies and Practices— The Pentagon Papers, Hearings before a Subcommittee of the House Committee on Government Operations, 92d Cong., 1st Sess., pt. 1, p. 97; Cong. Horton, The Public's Right to Know, 77 Case & Comm. 3, 5 (1972). We are told that the military has withheld as confidential a large selection of photographs showing atrocities against Vietnamese civilians wrought by both Communist and United States forces. Even a training manual devoted to the history of the Bolshevik revolution was dubbed secret by the military. Hearings, supra, pt. 3, at 966, 967 (testimony of former classification officer). And ordinary newspaper clippings of criticism aimed at the military have been routinely marked secret. Id., pt. 1, at 100. Former Justice and former Ambassador to the United Nations Arthur Goldberg has stated: "I have read and prepared countless thousands of classified documents. In my experience, 75 percent of these documents should never have been classified in the first place; another 15 percent quickly outlived the need for secrecy; and only about 10 percent genuinely required restricted access over any significant period of time." Id., pt. 1, at 12.

[33] Moreover, I would not even permit a conviction for the publication of documents related to future and sensitive planning where the jury was permitted, as it was in United States v. Drummond, 354 F. 2d 132, 152 (CA2), to consider the fact that the documents had been classified by the Executive Branch pursuant to its present over-broad system which, in my view, unnecessarily sweeps too much nonsensitive information into the locked files of the bureaucracies. In general, however, I agree that there may be situations and occasions in which the right to know must yield to other compelling and overriding interests. As Professor Henkin has observed, many deliberations in Government are kept confidential, such as the proceedings of grand juries or our own Conferences, despite the fact that the breadth of public knowledge is thereby diminished. Henkin, The Right To Know And The Duty To Withhold: The Case Of The Pentagon Papers, 120 U. Pa. L. Rev. 271, 274-275 (1971).

[34] In Alderman v. United States, 394 U. S. 165, we took a like course in requiring the prosecution to disclose to the defense records of unlawful electronic surveillance:

"It may be that the prospect of disclosure will compel the Government to dismiss some prosecutions in deference to national security or third-party interests. But this is a choice the Government concededly faces with respect to material which it has obtained illegally and which it admits, or which a judge would find, is arguably relevant to the evidence offered against the defendant." Id., at 184.

A different rule obtains in civil suits where the government is not the moving party but is a defendant and has specified the terms on which it may be sued. United States v. Reynolds, 345 U. S. 1, 12.

[35] Republication of what has filled the Congressional Record is commonplace. Newspapers, television, and radio use its contents constantly. I see no difference between republication of a paragraph and republication of material amounting to a book. Once a document or a series of documents is in the record of the Senate or House or one of its committees it is in the public domain.

[36] It is conceded that all of the material which Beacon Press has undertaken to publish was introduced into the Subcommittee record and that this record is open to the public. See Brief for United States 3.

[37] In Wason the proprietor of the London Times was sued for printing an account of a libelous debate in the House of Lords. The court agreed with Stockdale that the House did not have final authority to determine the scope of its privileges and thus could not confer immunity on any publisher merely by ordering a document printed and then declaring it privileged. Indeed, the Wason court gave its "unhesitating and unqualified adhesion" to Stockdale on that point. Id., at 86. The only issue for the court, therefore, was whether the publication "is, independently of such order or assertion of privilege, in itself privileged and lawful." Id., at 87. On that issue the court severely criticized the reasoning of earlier cases, including Stockdale, stating that two of the Justices in that case had expressed a "very shortsighted view of the subject." Id., at 91. The court held that so long as the republication was accurate and in good faith, it could not be the basis of a libel action; and the member himself was privileged to publish his speech "for the information of his constituents." Id., at 95. Relying, not on the Parliamentary Papers Act of 1840, which was enacted in response to Stockdale, but on the analogy to judicial reports and the need for an informed public, the court stated:

"It seems to us impossible to doubt that it is of paramount public and national importance that the proceedings of the houses of parliament shall be communicated to the public, who have the deepest interest in knowing what passes within their walls, seeing that on what is there said and done, the welfare of the community depends. Where would be our confidence in the government of the country or in the legislature by which our laws are framed, and to whose charge the great interests of the country are committed,—where would be our attachment to the constitution under which we live,—if the proceedings of the great council of the realm were shrouded in secrecy and concealed from the knowledge of the nation? How could the communications between the representatives of the people and their constituents, which are so essential to the working of the representative system, be usefully carried on, if the constituencies were kept in ignorance of what their representatives are doing? What would become of the right of petitioning on all measures pending in parliament, the undoubted right of the subject, if the people are to be kept in ignorance of what is passing in either house? Can any man bring himself to doubt that the publicity given in modern times to what passes in parliament is essential to the maintenance of the relations subsisting between the government, the legislature, and the country at large?" Id., at 89.

The fact that the debate was published in violation of a standing order of Parliament was held to be irrelevant. "Independently of the orders of the houses, there is nothing unlawful in publishing reports of parliamentary proceedings. . . . [A]ny publication of its debates made in contravention of its orders would be a matter between the house and the publisher." Id., at 95.

Whether Wason was based on parliamentary privilege or on an analogy to the publication of judicial proceedings is unimportant. What is important to the instant litigation is that Wason firmly rejected any implication in Stockdale that the informing function was not among the legislative activities that a member of Parliament was privileged to perform. Indeed, that same conclusion was reached by Sir Gilbert Campion, a noted scholar, in his memorandum to the House of Commons' Select Committee on the Official Secrets Acts. After reviewing the republication cases through Wason, the memorandum concluded:

"If . . . a member circulated among his constituents a speech made by him in Parliament in which he had disclosed information [otherwise subject to the Official Secrets Acts], it might be held on the analogy of the principles which have been said to apply to prosecutions for libel that he could not be proceeded against for disclosing it to his constituents, unless, of course, the speech had been made in a secret session. Even if the suggested analogy is not admitted, it would be repugnant to common sense to hold that though the original disclosure in the House was protected by parliamentary privilege, the circulation of the speech among the member's constituents was not." Minutes of Evidence Taken before the Select Committee on the Official Secrets Acts 29 (1939).

[38] Different considerations may apply, of course, where the republication is attacked, not by the Executive, but by private persons seeking judicial redress for an alleged invasion of their constitutional rights.

442 U.S. 477 (1979)

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT.

[478] Solicitor General McCree argued the cause for the United States. With him on the brief were Assistant Attorney General Heymann, Deputy Solicitor General Frey, and Louis M. Fischer.

Morton Stavis argued the cause for respondent. With him on the briefs was Louise Halper.

Stanley M. Brand argued the cause for Thomas P. O'Neill, Jr., Speaker of the United States House of Representatives, et al. as amici curiae. With Mr. Brand on the brief was Neal P. Rutledge.

[479] MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

We granted certiorari in this case to resolve important questions concerning the restrictions the Speech or Debate Clause^[1] places on the admissibility of evidence at a trial on charges that a former Member of the House had, while a Member, accepted money in return for promising to introduce and introducing private bills.^[2]

I

Respondent Helstoski is a former Member of the United States House of Representatives from New Jersey. In 1974, while Helstoski was a Member of the House, the Department of Justice began investigating reported political corruption, including allegations that aliens had paid money for the introduction of private bills which would suspend the application of the immigration laws so as to allow them to remain in this country.

The investigation was carried on before nine grand juries. The grand juries were called according to the regular practice in the District of New Jersey, which was to have a different grand jury sitting on each of six days during the week; on two days there was a second grand jury. When the United States Attorney was ready to present evidence, he presented it to whichever grand jury was sitting that day. There was therefore no assurance that any grand jury which voted an indictment would see and hear all of the witnesses or see all of the documentary evidence. It was contemplated that the grand jury that was asked to return an indictment would review [480] transcripts of relevant testimony presented to other grand juries.

Helstoski appeared voluntarily before grand juries on 10 occasions between April 1974 and May 1976. Each time he appeared, he was told that he had certain constitutional rights. Different terms were used by different attorneys for the United States, but the following exchange, which occurred at Helstoski's first appearance before a grand jury, fairly represents the several exchanges:

"Q. You were told at that time [at the office of the United States Attorney earlier]—and just to repeat them today—before we begin you were told that you did not have to give any testimony to the Grand Jury or make any statements to any officer of the United States. You understand that, do you not?

"A. I come with full and unlimited cooperation.

"Q. I understand that. . . .

.....

"Q. And that you also know that anything that you may say to any agent of the United States or to this Grand Jury may later be used in a court of law against you; you understand that as well?

[Affirmative response given.]

.....

"A. Whatever is in my possession, in my files, in its original form, will be turned over. Those files which I have—some of them are very, very old. I've been in Congress since 1965. We mentioned this.

.....

"Q. The Grand Jury wants from you simply the records that are in your possession, whether it be in your office in East Rutherford, New Jersey, Washington, D. C., your home, wherever they may be, the Grand Jury would like you to present those documents. Of course, you understand [481] that if you wish not to present those documents you do not have to and that anything you do present may also, as I have told you about your personal testimony, may be used against you later in a court of law?

"A. I understand that. Whatever I have will be turned over to you with full cooperation of [sic] this Grand Jury and with yourself, sir.

.....

"A. I understand that. I promise full cooperation with your office, with the FBI, this Grand Jury.

"Q. The Grand Jury is appreciative of that fact. They also want to make certain that when you are giving this cooperation that you understand, as with anyone else that might be called before a United States Grand Jury, exactly what their constitutional rights are. And that is why I have gone through this step by step carefully so there will be no question and there will be no doubt in anybody's mind.

"A. As I indicated, I come with no request for immunity and you can be assured there won't be any plea of the Fifth Amendment under any circumstances."

Helstoski testified as to his practices in introducing private immigration bills, and he produced his files on numerous private bills. Included in the files were correspondence with a former legislative aide and with individuals for whom bills were introduced. He also provided copies of 169 bills introduced on behalf of various aliens.

Beginning with his fourth appearance before a grand jury, in October 1975, Helstoski objected to the burden imposed by the requests for information. The requests, he claimed, violated his own right of privacy and that of his constituents. In that appearance, he also stated that there were "some serious Constitutional questions" raised by the failure of the United States Attorney to return tax records which Helstoski had voluntarily delivered. He did not, however, assert a privilege [482] against producing documents until the seventh appearance, on December 12, 1975. Then he declined to answer questions, complaining that the United States Attorney had stated to the District Court that the grand jury had concluded that Helstoski had misapplied campaign funds. He asserted a general invocation of rights under the Constitution and specifically listed the Fourth, Fifth, Sixth, Ninth, and Fourteenth Amendments.

At the next, and eighth, appearance on December 29, 1975, he repeated his objections to the conduct of the United States Attorney. After answering questions about campaign financing, personal loans, and other topics, he declined to answer questions about the receipt of a sum of money. That action was based upon his privilege under the Fifth Amendment "and on further grounds that to answer that question would violate my rights under the Constitution."

Because the grand jury considered that Helstoski's invocation of constitutional privileges was too general to be acceptable, it adjourned and reconvened before the District Judge to seek a ruling on Helstoski's claim of privilege "under the Constitution." After questioning Helstoski, the judge stated that the privilege against compulsory self-incrimination was the only privilege available to Helstoski. The judge assisted Helstoski in wording a statement invoking the privilege that was satisfactory to the grand jury. Thereafter, Helstoski invoked his Fifth Amendment privilege in refusing to answer further questions, including a series of questions about private immigration bills.

Not until his ninth, and penultimate, appearance before a grand jury did Helstoski assert any privilege under the Speech or Debate Clause. On May 7, 1976, Helstoski asked if he was a target of the investigation. The prosecutor declined to answer the question, stating "it would be inappropriate for this Grand Jury or indeed for me to say that you are a target." Helstoski then invoked his privilege against compulsory self-incrimination [483] and declined to answer further questions or to produce documents.^[3] He also declined to produce a copy of an insert from the Congressional Record, saying "I consulted with my attorneys and based on the statement that was made on the floor, I don't have any right to be questioned at any other time or place as reference to statements made on the floor of Congress."

Although that was the first instance which can even remotely be characterized as reliance upon the Speech or Debate Clause, Helstoski earlier had indicated an awareness of another aspect of the constitutional privileges afforded Congressmen.^[4] During his fourth appearance before a grand jury, in October 1975, Helstoski complained that he had been served with a subpoena directing him to appear before a grand jury on a day that Congress was in session.^[5]

[484] At his 10th, and final, appearance before a grand jury, Helstoski invoked his Fifth Amendment privilege. But he also referred repeatedly to "other constitutional privileges which prevail." Nevertheless, he continued to promise to produce campaign and personal financial records as requested by the grand jury and directed by the District Judge.

II

In June 1976, a grand jury returned a multiple-count indictment charging Helstoski and others with various criminal acts. Helstoski moved to dismiss the indictment, contending that the grand jury process had been abused and that the indictment violated the Speech or Debate Clause.

The District Judge denied the motion after examining a transcript of the evidence presented to the indicting grand jury. He held that the Speech or Debate Clause did not require dismissal. He also ruled that the Government would not be allowed to offer evidence of the actual performance of any legislative acts. That ruling prompted the Government to file a motion requesting that the judge pass on the admissibility of 23 categories of evidence. The Government urged that a ruling was necessary to avoid the possibility of a mistrial. Helstoski opposed the motion, arguing that the witnesses would not testify as the Government indicated in its proffer.

The District Judge declined to rule separately on each of the categories. Instead, he ordered:

"The United States may not, during the presentation of its case-in-chief at the trial of [this] Indictment, introduce evidence of the performance of a past legislative [485] act on the part of the defendant, Henry Helstoski, derived from any source and for any purpose." (Emphasis added.)

The Government filed a timely appeal from the evidentiary ruling, relying upon 18 U. S. C. § 3731:

"An appeal by the United States shall lie to a court of appeals from a decision or order of a district court suppressing or excluding evidence . . . not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information, if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.

"The appeal in all such cases shall be taken within thirty days after the decision, judgment or order has been rendered and shall be diligently prosecuted.

.....

"The provisions of this section shall be liberally construed to effectuate its purposes."

The Court of Appeals affirmed the District Court's evidentiary ruling. 576 F. 2d 511 (CA3 1978). It first concluded that an appeal was proper under § 3731, relying primarily upon its earlier decision in United States v. Beck, 483 F. 2d 203 (1973), cert. denied, 414 U. S. 1132 (1974), and upon the language in the section mandating that it be "liberally construed."

Turning to the merits of the Government's appeal, the Court of Appeals rejected both of the Government's arguments: (a) that legislative acts could be introduced to show motive; and (b) that legislative acts could be introduced because Helstoski had waived his privilege by testifying before the grand juries. The court relied upon language in United States v. Brewster, 408 U. S. 501, 527 (1972), prohibiting the introduction of evidence as to how a Congressman acted on, voted on, or resolved [486] a legislative issue. The court reasoned that to permit evidence of such acts under the guise of showing motive would negate the protection afforded by the Speech or Debate Clause.

In holding Helstoski had not waived the protection of the Speech or Debate Clause, the Court of Appeals did not decide whether the protection could be waived. Rather, it assumed that a Member of Congress could waive the privilege, but held that any waiver must be "express and for the specific purpose for which the evidence of legislative acts is sought to be used against the member." 576 F. 2d, at 523-524. Any lesser standard, the court reasoned, would frustrate the purpose of the Clause. Having found on the record before it that no waiver was shown, it affirmed the District Court order under which the Government is precluded from introducing evidence of past legislative acts in any form.

In seeking review of the judgment of the Court of Appeals, the Government contends that the Speech or Debate Clause does not bar the introduction of all evidence referring to legislative acts. It concedes that, absent a waiver, it may not introduce the bills themselves. But the Government argues that the Clause does not prohibit it from introducing evidence of discussions and correspondence which describe and refer to legislative acts if the discussions and correspondence did not occur during the legislative process. The Government contends that it seeks to introduce such evidence to show Helstoski's motive for taking money, not to show his motive for introducing the bills. Alternatively, the Government contends that Helstoski waived his protection under the Speech or Debate Clause when he voluntarily presented evidence to the grand juries. Volunteered evidence, the Government argues, is admissible at trial regardless of its content.

Finally, the Government argues, by enacting 18 U. S. C. § 201, Congress has shared its authority with the Executive and the Judiciary by express delegation authorizing the indictment [487] and trial of Members who violate that section—in short an institutional decision to waive the privilege of the Clause.

III

The Court's holdings in United States v. Johnson, 383 U. S. 169 (1966), and United States v. Brewster, supra, leave no doubt that evidence of a legislative act of a Member may not be introduced by the Government in a prosecution under § 201.^[6] In Johnson there had been extensive questioning of both Johnson, a former Congressman, and others about a speech which Johnson had delivered in the House of Representatives and the motive for the speech. The Court's conclusion was unequivocal:

"We see no escape from the conclusion that such an intensive judicial inquiry, made in the course of a prosecution by the Executive Branch under a general conspiracy statute, violates the express language of the Constitution and the policies which underlie it." 383 U. S., at 177.

In Brewster, we explained the holding of Johnson in this way:

"Johnson thus stands as a unanimous holding that a Member of Congress may be prosecuted under a criminal statute provided that the Government's case does not rely [488] on legislative acts or the motivation for legislative acts. A legislative act has consistently been defined as an act generally done in Congress in relation to the business before it. In sum, the Speech or Debate Clause prohibits inquiry only into those things generally said or done in the House or the Senate in the performance of official duties and into the motivation for those acts." 408 U. S., at 512.

The Government, however, argues that exclusion of references to past legislative acts will make prosecutions more difficult because such references are essential to show the motive for taking money. In addition, the Government argues that the exclusion of references to past acts is not logically consistent. In its view, if jurors are told of promises to perform legislative acts they will infer that the acts were performed, thereby calling the acts themselves into question.

We do not accept the Government's arguments; without doubt the exclusion of such evidence will make prosecutions more difficult. Indeed, the Speech or Debate Clause was designed to preclude prosecution of Members for legislative acts.^[7] [489] The Clause protects "against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts." Id., at 525. It "precludes any showing of how [a legislator] acted, voted, or decided." Id., at 527. Promises by a Member to perform an act in the future are not legislative acts. Brewster makes clear that the "compact" may be shown without impinging on the legislative function. Id., at 526.

We therefore agree with the Court of Appeals that references to past legislative acts of a Member cannot be admitted without undermining the values protected by the Clause. We implied as much in Brewster when we explained: "To make a prima facie case under [the] indictment, the Government need not show any act of [Brewster] subsequent to the corrupt promise for payment, for it is taking the bribe, not performance of the illicit compact, that is a criminal act." Ibid. (Emphasis altered.) A similar inference is appropriate from Johnson where we held that the Clause was violated by questions about motive addressed to others than Johnson himself. That holding would have been unnecessary if the Clause did not afford protection beyond legislative acts themselves.

MR. JUSTICE STEVENS misconstrues our holdings on the Speech or Debate Clause in urging: "The admissibility line should be based on the purpose of the offer rather than the specificity of the reference." Post, at 496. The Speech or Debate Clause does not refer to the prosecutor's purpose in offering evidence. The Clause does not simply state, "No proof of a legislative act shall be offered"; the prohibition of the Clause is far broader. It provides that Members "shall not be questioned in any other Place." Indeed, as MR. JUSTICE STEVENS recognizes, the admission of evidence of legislative acts "may reveal [to the jury] some information about the performance of legislative acts and the legislator's motivation [490] in conducting official duties." Post, at 496. Revealing information as to a legislative act—speaking or debating—to a jury would subject a Member to being "questioned" in a place other than the House or Senate, thereby violating the explicit prohibition of the Speech or Debate Clause.

As to what restrictions the Clause places on the admission of evidence, our concern is not with the "specificity" of the reference. Instead, our concern is whether there is mention of a legislative act. To effectuate the intent of the Clause, the Court has construed it to protect other "legislative acts" such as utterances in committee hearings and reports. E. g., Doe v. McMillan, 412 U. S. 306 (1973). But it is clear from the language of the Clause that protection extends only to an act that has already been performed. A promise to deliver a speech, to vote, or to solicit other votes at some future date is not "speech or debate." Likewise, a promise to introduce a bill is not a legislative act. Thus, in light of the strictures of Johnson and Brewster, the District Court order prohibiting the introduction of evidence "of the performance of a past legislative act" was redundant.

The Government argues that the prohibition of the introduction of evidence should not apply in this case because the protections of the Clause have been waived. The Government suggests two sources of waiver: (a) Helstoski's conduct and utterances, and (b) the enactment of 18 U. S. C. § 201 by Congress. The Government argues that Helstoski waived the protection of the Clause by testifying before the grand juries and voluntarily producing documentary evidence of legislative acts. The Government contends that Helstoski's conduct is sufficient to meet whatever standard is required for a waiver of that protection. We cannot agree.

Like the District Court and the Court of Appeals, we perceive no reason to decide whether an individual Member may waive the Speech or Debate Clause's protection against being prosecuted for a legislative act. Assuming that is possible. [491] we hold that waiver can be found only after explicit and unequivocal renunciation of the protection. The ordinary rules for determining the appropriate standard of waiver do not apply in this setting. See generally Johnson v. Zerbst, 304 U. S. 458, 464 (1938) ("intentional relinquishment or abandonment of a known right or privilege"); Garner v. United States, 424 U. S. 648, 654 n. 9, 657 (1976).

The Speech or Debate Clause was designed neither to assure fair trials nor to avoid coercion. Rather, its purpose was to preserve the constitutional structure of separate, coequal, and independent branches of government. The English and American history of the privilege suggests that any lesser standard would risk intrusion by the Executive and the Judiciary into the sphere of protected legislative activities. The importance of the principle was recognized as early as 1808 in Coffin v. Coffin, 4 Mass. 1, 27, where the court said that the purpose of the principle was to secure to every member "exemption from prosecution, for every thing said or done by him, as a representative, in the exercise of the functions of that office." (Emphasis added.)

This Court has reiterated the central importance of the Clause for preventing intrusion by Executive and Judiciary into the legislative sphere.

"[I]t is apparent from the history of the clause that the privilege was not born primarily of a desire to avoid private suits . . . but rather to prevent intimidation by the executive and accountability before a possibly hostile judiciary.

.....

"There is little doubt that the instigation of criminal charges against critical or disfavored legislators by the executive in a judicial forum was the chief fear prompting the long struggle for parliamentary privilege in England and, in the context of the American system of separation of powers, is the predominate thrust of the Speech [492] or Debate Clause." United States v. Johnson, 383 U. S., at 180-181, 182.

We reaffirmed that principle in Gravel v. United States, 408 U. S. 606, 618 (1972), when we noted that the "fundamental purpose" of the Clause was to free "the legislator from executive and judicial oversight that realistically threatens to control his conduct as a legislator."

On the record before us, Helstoski's words and conduct cannot be seen as an explicit and unequivocal waiver of his immunity from prosecution for legislative acts—assuming such a waiver can be made. The exchanges between Helstoski and the various United States Attorneys indeed indicate a willingness to waive the protection of the Fifth Amendment; but the Speech or Debate Clause provides a separate, and distinct, protection which calls for at least as clear and unambiguous an expression of waiver. No such showing appears on this record.

The Government also argues that there has been a sort of institutional waiver by Congress in enacting § 201. According to the Government, § 201 represents a collective decision to enlist the aid of the Executive Branch and the courts in the exercise of Congress' powers under Art. I, § 5, to discipline its Members. This Court has twice declined to decide whether a Congressman could, consistent with the Clause, be prosecuted for a legislative act as such, provided the prosecution were "founded upon a narrowly drawn statute passed by Congress in the exercise of its legislative power to regulate the conduct of its members." Johnson, supra, at 185. United States v. Brewster, 408 U. S., at 529 n. 18. We see no occasion to resolve that important question. We hold only that § 201 does not amount to a congressional waiver of the protection of the Clause for individual Members.

We recognize that an argument can be made from precedent and history that Congress, as a body, should not be free to strip individual Members of the protection guaranteed by the [493] Clause from being "questioned" by the Executive in the courts. The controversy over the Alien and Sedition Acts reminds us how one political party in control of both the Legislative and the Executive Branches sought to use the courts to destroy political opponents.

The Supreme Judicial Court of Massachusetts noted in Coffin that "the privilege secured . . . is not so much the privilege of the house as an organized body, as of each individual member composing it, who is entitled to this privilege, even against the declared will of the house." 4 Mass., at 27 (emphasis added). In a similar vein in Brewster we stated:

"The immunities of the Speech or Debate Clause were not written into the Constitution simply for the personal or private benefit of Members of Congress, but to protect the integrity of the legislative process by insuring the independence of individual legislators." 408 U. S., at 507 (emphasis added).

See also id., at 524. We perceive no reason to undertake, in this case, consideration of the Clause in terms of separating the Members' rights from the rights of the body.

Assuming, arguendo, that the Congress could constitutionally waive the protection of the Clause for individual Members, such waiver could be shown only by an explicit and unequivocal expression. There is no evidence of such a waiver in the language or the legislative history of § 201 or any of its predecessors.^[8]

[494] We conclude that there was neither individual nor institutional waiver and that the evidentiary barriers erected by the Speech or Debate Clause must stand. Accordingly, the judgment of the Court of Appeals is

Affirmed.

MR. JUSTICE POWELL took no part in the consideration or decision of this case.

MR. JUSTICE STEVENS, with whom MR. JUSTICE STEWART joins, concurring in part and dissenting in part.

The Court holds that United States v. Brewster, 408 U. S. 501, and United States v. Johnson, 383 U. S. 169, preclude the Government from introducing evidence of a legislative act by a Member of Congress. I agree that those cases do prevent the prosecution from attempting to prove that a legislative act was performed. I do not believe, however, that they require rejection of evidence that merely refers to legislative acts when that evidence is not offered for the purpose of proving the legislative act itself.

In Johnson, the Court held that a Member of Congress could not be prosecuted for conspiracy against the United States based on his preparation and delivery of an improperly motivated speech in the House of Representatives. After noting that the attention given to the speech was not merely "an incidental part of the Government's case," but rather was "an intensive judicial inquiry" into the speech's substance and motivation, id., at 176-177, the Court held that the prosecution [495] violated the express language of the Speech or Debate Clause and the policies that underlie it. The Court carefully emphasized, however, that its decision was limited to a case of that character and "does not touch a prosecution which . . . does not draw in question the legislative acts of the defendant member of Congress or his motives for performing them." Id., at 185.

In Brewster, the Court held that the Speech or Debate Clause did not bar prosecution of a former Senator for receiving money in return for being influenced in the performance of a legislative act. The Court read Johnson as allowing a prosecution of a Member of Congress so long as the Government's case does not rely on legislative acts or the motivation for such acts. It reasoned that Brewster was not being prosecuted for the performance of a legislative act, but rather for soliciting or agreeing to take money with knowledge that the donor intended to compensate him for an official act. Whether the Senator ever performed the official act was irrelevant.

As a practical matter, of course, it is clear that evidence relating to a legislator's motivation for accepting a bribe will also be probative of his intent in committing the official act for which the bribe was solicited or paid. Nonetheless, the Court made clear in Brewster that inquiries into the legislator's motivation in accepting payment are not barred by Johnson's proscription against inquiry into legislative motivation. "[A]n inquiry into the purpose of a bribe," the Brewster Court held, "`does not draw in question the legislative acts of the defendant member of Congress or his motives for performing them.'" 408 U. S., at 526, quoting Johnson, supra, at 185. Thus, so long as the Government's case does not depend upon the legislator's motivation in committing an official act, inquiries into his motivation in accepting a bribe—which obviously may be revealing as to both the existence of legislative acts and the motivation for [496] them—are permissible under the Speech or Debate Clause, as interpreted in Brewster.

Brewster's recognition of this distinction, in my judgment, provides strong support for the Government's argument in this case. Here, the Government is seeking to introduce written and testimonial evidence as to Helstoski's motivation in soliciting and accepting bribes. Some of this evidence makes reference to past or future legislative acts for which payment is being sought or given. Obviously, this evidence, to the extent it is probative of Helstoski's intent in accepting payment, is an important and legitimate part of the Government's case against the former Congressman. Whether or not he ever committed the legislative acts is wholly irrelevant to the Government's proof, and inquiry into that subject is prohibited by Johnson and Brewster. But the mere fact that legislative acts are mentioned does not, in my view, require that otherwise relevant and admissible evidence be excluded. The acts may or may not have been performed; the statements in the letters may be true or false. The existence of the statements does not establish that legislative acts were performed; nor does it constitute inquiry into those acts. To be sure, such statements may reveal some information about the performance of legislative acts and the legislator's motivation in conducting official duties. However, that is also true of other evidence making no reference to specific past legislative acts, but rather dealing only with promises of future performance or less specific commitments to legislative action. Brewster establishes that such evidence is admissible in bribery prosecutions because it does not draw in question the legislative act itself or its motivation. The admissibility line should be based on the purpose of the offer rather than the specificity of the reference. So long as the jury is instructed that it should not consider the references as proof of legislative acts, and so long as no inquiry is made with respect to the motivations for such acts, Brewster does not bar the introduction [497] of evidence simply because reference is made to legislative acts.^[9]

Indeed, I think it important to emphasize that the majority today does not read Brewster to foreclose the introduction of any evidence making reference to legislative acts. The Court holds that evidence referring only to acts to be performed in the future may be admitted into evidence. Ante, at 490. The Court explains this holding by noting that a promise to perform a legislative act in the future is not itself a legislative act. But it is equally true that the solicitation of a bribe which contains a self-laudatory reference to past performance is not itself a legislative act. Whether the legislator refers to past or to future performance, his statement will be probative of his intent in accepting payment and, in [498] either event, may incidentally shed light on the performance and motivation of legislative acts. The proper remedy, in my judgment, is not automatic inadmissibility for past references and automatic admissibility for future references. Rather, drawing on the language of the Constitution itself, the test should require the trial court to analyze the purpose of the prosecutor's questioning. If the evidentiary references to legislative acts are merely incidental to a proper purpose, the judge should admit the evidence and instruct the jury as to its limited relevance. The Constitution mandates that legislative acts "shall not be questioned"; it does not say they shall not be mentioned.

The Court properly notes that the Government has no valid complaint simply because application of the Speech or Debate Clause renders some prosecution of Members of Congress "difficult." Ante, at 488. But I do not believe the Clause was intended to make such prosecution virtually impossible. In light of the Court's holding in Brewster that bribery prosecutions are permissible, it is illogical to adopt rules of evidence that will allow a Member of Congress effectively to immunize himself from conviction simply by inserting references to past legislative acts in all communications, thus rendering all such evidence inadmissible. Because I believe the exclusionary rule the Court applies today affords greater protection than is necessary to fulfill the mission of the Speech or Debate Clause, I respectfully dissent to the limited extent indicated above.

MR. JUSTICE BRENNAN, dissenting.

While I have no quarrel with the Court's decision to limit the evidence which the Government may introduce at Helstoski's trial, I would go much further and order the dismissal of Helstoski's indictment altogether. "[P]roof of an agreement to be `influenced' in the performance of legislative acts is by definition an inquiry into their motives, whether or [499] not the acts themselves or the circumstances surrounding them are questioned at trial." United States v. Brewster, 408 U. S. 501, 536 (1972) (BRENNAN J., dissenting). I continue to adhere to the view expressed in my dissent in Brewster, and would hold that "a corrupt agreement to perform legislative acts, even if provable without reference to the acts themselves, may not be the subject of a general conspiracy prosecution." Id., at 539.

[1] The Speech or Debate Clause provides that "for any Speech or Debate in either House, they [the Senators and Representatives] shall not be questioned in any other Place." Art. I, § 6.

[2] This case was argued together with No. 78-546, Helstoski v. Meanor, post, p. 500, which involves the question of whether mandamus is an appropriate means of challenging the validity of an indictment on the ground that it violates the Speech or Debate Clause.

[3] That Helstoski may not have had the extent of his privilege clearly in mind is indicated by the following exchange between him and an Assistant United States Attorney during Helstoski's ninth appearance before a grand jury:

"A. [Helstoski] I stand on my Constitutional privilege regarding the Fifth Amendment.

"Q. And that privilege is against self incrimination?

"A. Whatever the Fifth Amendment is."

[4] The District Court found that "Helstoski was aware of the Speech or Debate Clause at the time he made his first grand jury appearance. He had recently concluded litigation involving his franking privilege in which he had relied upon the Speech or Debate Clause. Schiaffo v. Helstoski, 350 F. Supp. 1076 (D. N. J. 1972), rev'd in part, aff'd in part and remanded, 492 F. 2d 413 (3d Cir. 1974). In that litigation, Helstoski was represented by the same attorney who represented him throughout his grand jury appearances."

[5] He offered this explanation to an Assistant United States Attorney:

"A. [Helstoski] Do you want to get into the Constitutional question of whether or not you could serve a member of Congress while Congress is in session?

"You know very well that can't be done . . . .

"Q. Congressman, you've used the term `illegal subpoena.' Who told you it was illegal?

"A. That's my own judgment based on the Constitution and the Rules of Procedure of the House of Representatives."

[6] We agree with the Court of Appeals that 18 U. S. C. § 3731 authorized the Government to appeal the District Court order restricting the evidence that could be used at trial. All of the requisites of § 3731 were met. There was an order of a District Court excluding evidence; a United States Attorney filed the proper certification; and the appeal was taken within 30 days. In United States v. Wilson, 420 U. S. 332, 337 (1975), we concluded that the purpose of the section was "to remove all statutory barriers to Government appeals and to allow appeals whenever the Constitution would permit." See also United States v. Scott, 437 U. S. 82, 84-85 (1978); H. R. Conf. Rep. No. 91-1768, p. 21 (1970); S. Rep. No. 91-1296, pp. 2-3 (1970); 116 Cong. Rec. 35659 (1970) (remarks of Sen. Hruska). There are no constitutional barriers to this appeal, and we conclude that the appeal was authorized by § 3731.

[7] MR. JUSTICE STEVENS suggests that our holding is broader than the Speech or Debate Clause requires. In his view, "it is illogical to adopt rules of evidence that will allow a Member of Congress effectively to immunize himself from conviction [for bribery] simply by inserting references to past legislative acts in all communications, thus rendering all such evidence inadmissible." Post, at 498. Nothing in our opinion, by any conceivable reading, prohibits excising references to legislative acts, so that the remainder of the evidence would be admissible. This is a familiar process in the admission of documentary evidence. Of course, a Member can use the Speech or Debate Clause as a shield against prosecution by the Executive Branch, but only for utterances within the scope of legislative acts as defined in our holdings. That is the clear purpose of the Clause. The Clause is also a shield for libel, and beyond doubt it "has enabled reckless men to slander and even destroy other with impunity, but that was the conscious choice of the Framers." United States v. Brewster, 408 U. S. 501, 516 (1972). Nothing in our holding today, however, immunizes a Member from punishment by the House or the Senate by disciplinary action including expulsion from the Member's seat.

[8] Section 201 was enacted in 1962. Pub. L. 87-849, 76 Stat. 1119. It replaced a section that had remained unchanged since its original enactment in 1862. Ch. 180, 12 Stat. 577. See Rev. Stat. § 1781; 18 U. S. C. § 205 (1958 ed.). The debates on the 1862 Act reveal no discussion of the speech or debate privilege. See, e. g., Cong. Globe, 37th Cong., 2d Sess., 3260 (1862). As explained in the House Report accompanying the 1962 Act, the purpose of the Act was "to render uniform the law describing a bribe and prescribing the intent or purpose which makes its transfer unlawful." H. R. Rep. No. 748, 87th Cong., 1st Sess., 15 (1961). The Senate Report expanded the explanation and said that a purpose of the Act was the "substitution of a single comprehensive section of the Criminal Code for a number of existing statutes concerned with bribery. This consolidation would make no significant changes of substance and, more particularly, would not restrict the broad scope of the present bribery statutes as construed by the courts." S. Rep. No. 2213, 87th Cong., 2d Sess., 4 (1962).

[9] In reaching this conclusion, I have not overlooked the language in Brewster, relied upon by respondent, that "Johnson precludes any showing of how [Brewster] acted, voted, or decided." 408 U. S., at 527. Taken out of context, that language would appear to support Helstoski's claim that all references to legislative action are inadmissible. When placed in its proper context, however, it clearly does not.

The quoted statement was made with respect to the dissent's argument that criminal prosecution should not be permitted since the indictment charged the offense as being in part linked to Brewster's "action, vote and decision on postage rate legislation." In response, the Court pointed out that, while this was true, "[t]he Government, as we have noted, need not prove any specific act, speech, debate, or decision to establish a violation of the statute under which appellee was indicted. To accept the arguments of the dissent would be to retreat from the Court's position in Johnson that a Member may be convicted if no showing of legislative act is required." Id., at 528 (emphasis added). When placed in this context, I think it clear that the statement relied upon by respondent should be read only as establishing—as Johnson itself held, and as the Brewster Court read Johnson—that a Member of Congress may not be prosecuted if proof of a specific legislative act would be required as an element of the Government's case. The recognition by the Court today that evidence referring to future legislative actions is admissible, see ante, at 490, itself is a rejection of the broad reading respondent attaches to "any showing."

497 F.3d 654 (2007)

Robert P. Trout argued the cause for appellant. With him on the briefs were [655] Amy Berman Jackson and Gloria B. Solomon.

James Hamilton and Robert V. Zener were on the brief for amici curiae Thomas S. Foley, et al. in support of appellant.

Scott Palmer, Elliot S. Berke, and Reid Stuntz, and Philip Kiko, appearing pro se, were on the brief as amici curiae in support of appellant.

David H. Remes and Richard D. Dietz were on the brief for amicus curiae Abner J. Mikva in support of appellant and for reversal.

Gregory L. Poe was on the brief for amici curiae Stanley M. Brand, et al. in support of appellant.

Michael R. Dreeben, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Jeffrey A. Taylor, U.S. Attorney, Darryl Joseffer, Assistant to the Solicitor General, U.S. Department of Justice, Stephan E. Oestreicher, Jr. and Charles E. Duross, Attorneys, and Roy W. McLeese, III, Assistant U.S. Attorney.

Melanie Sloan and Anne L. Weismann were on the brief for amicus curiae Citizens for Responsibility and Ethics in Washington supporting affirmance. Daniel J. Popeo, Paul D. Kamenar, Perry O. Barber were on the brief for amicus curiae Washington Legal Foundation in support of appellee and urging affirmance.

Paul J. Orfanedes and Meredith L. Di Liberto were on the brief for amicus curiae Judicial Watch, Inc. in support of appellee urging affirmation.

Before: GINSBURG, Chief Judge, and HENDERSON and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

Opinion concurring in the judgment filed by Circuit Judge HENDERSON.

ROGERS, Circuit Judge:

This is an appeal from the denial of a motion, filed pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure, seeking the return of all materials seized by the Executive upon executing a search warrant for non-legislative materials in the congressional office of a sitting Member of Congress. The question on appeal is whether the procedures under which the search was conducted were sufficiently protective of the legislative privilege created by the Speech or Debate Clause, Article I, Section 6, Clause 1 of the United States Constitution. Our precedent establishes that the testimonial privilege under the Clause extends to non-disclosure of written legislative materials. See Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 420 (D.C.Cir.1995). Given the Department of Justice's voluntary freeze of its review of the seized materials and the procedures mandated on remand by this court in granting the Congressman's motion for emergency relief pending appeal, the imaging and keyword search of the Congressman's computer hard drives and electronic media exposed no legislative material to the Executive, and therefore did not violate the Speech or Debate Clause, but the review of the Congressman's paper files when the search was executed exposed legislative material to the Executive and accordingly violated the Clause. Whether the violation requires, as the Congressman suggests, the return of all seized items, privileged as well as non-privileged, depends upon a determination of which documents are privileged and then, as to the non-privileged documents, a balancing of the separation of powers underlying the Speech or Debate Clause and the Executive's Article II, Section 3 law enforcement interest in the seized materials. The question of whether the seized evidence must be suppressed under the Fourth Amendment is not before us.

[656] We hold that the compelled disclosure of privileged material to the Executive during execution of the search warrant for Rayburn House Office Building Room 2113 violated the Speech or Debate Clause and that the Congressman is entitled to the return of documents that the court determines to be privileged under the Clause. We do not, however, hold, in the absence of a claim by the Congressman that the operations of his office have been disrupted as a result of not having the original versions of the non-privileged documents, that remedying the violation also requires the return of the non-privileged documents. The Congressman has suggested no other reason why return of such documents is required pursuant to Rule 41(g) and, in any event, it is doubtful that the court has jurisdiction to entertain such arguments following the return of the indictment against him while this appeal was pending.

I.

On May 18, 2006, the Department of Justice filed an application for a search warrant for Room 2113 of the Rayburn House Office Building, the congressional office of Congressman William J. Jefferson. The attached affidavit of Special Agent Timothy R. Thibault of the Federal Bureau of Investigation ("FBI") described how the apparent victim of a fraud and bribery scheme who had come forward as a cooperating witness led to an investigation into bribery of a public official, wire fraud, bribery of a foreign official, and conspiracy to commit these crimes. The investigation included speaking with the Congressman's staff, one of whom had advised that records relevant to the investigation remained in the congressional office. Based on the investigation, the affiant concluded that there was probable cause to believe that Congressman Jefferson, acting with other targets of the investigation, had sought and in some cases already accepted financial backing and or concealed payments of cash or equity interests in business ventures located in the United States, Nigeria, and Ghana in exchange for his undertaking official acts as a Congressman while promoting the business interests of himself and the targets. Attachments A and B, respectively, described Room 2113 and the non-legislative evidence to be seized. The affiant asserted that the Executive had exhausted all other reasonable methods to obtain these records in a timely manner.

The warrant affidavit also described "special procedures" adopted by the Justice Department prosecutors overseeing the investigation. According to the affidavit, these procedures were designed: (1) "to minimize the likelihood that any potentially politically sensitive, non-responsive items in the Office will be seized and provided to the [p]rosecution [t]eam," Thibault Aff. ¶ 136, and (2) "to identify information that may fall within the purview of the Speech or Debate Clause privilege, U.S. Const., art. I, § 6, cl. 1 or any other pertinent privilege," id. Essentially, the procedures called for the FBI agents conducting the search to "have no substantive role in the investigation" and upon reviewing and removing materials from Room 2113, not to reveal politically sensitive or non-responsive items "inadvertently seen . . . during the course of the search." Id. ¶¶ 137-38. The FBI agents were to review and seize paper documents responsive to the warrant, copy all electronic files on the hard drives or other electronic media in the Congressman's office, and then turn over the files for review by a filter team consisting of two Justice Department attorneys and an FBI agent. Id. ¶ 139. The filter team would determine: (1) whether any of the seized documents were not responsive to the search warrant, and return any such documents to the Congressman; and (2) whether any of the [657] seized documents were subject to the Speech or Debate Clause privilege or other privilege. Materials determined to be privileged or not responsive would be returned without dissemination to the prosecution team. Materials determined by the filter team not to be privileged would be turned over to the prosecution team, with copies to the Congressman's attorney within ten business days of the search. Materials determined by the filter team to be potentially privileged would, absent the Congressman's consent to Executive use of a potentially privileged document, be submitted to the district court for review, with a log and copy of such documents provided to the Congressman's attorney within 20 business days of the search. The filter team would make similar determinations with respect to the data on the copied computer hard drives, following an initial electronic screening by the FBI's Computer Analysis and Response Team.

The district court found probable cause for issuance of the search warrant and signed it on May 18, 2006, directing the search to occur on or before May 21 and the U.S. Capitol Police to "provide immediate access" to Room 2113. Beginning on Saturday night, May 20, more than a dozen FBI agents spent about 18 hours in Room 2113. The FBI agents reviewed every paper record and copied the hard drives on all of the computers and electronic data stored on other media in Room 2113. The FBI agents seized and carried away two boxes of documents and copies of the hard drives and electronic data. According to the brief for the Executive, the Office of the Deputy Attorney General directed an immediate freeze on any review of the seized materials. See Appellee's Br. at 10.

On May 24, 2006, Congressman Jefferson challenged the constitutionality of the search of his congressional office and moved for return of the seized property pursuant to FED. R. CRIM. P. 41(g). He argued, inter alia, that the issuance and execution of the search warrant violated the Speech or Debate Clause and sought an order enjoining FBI and Justice Department review or inspection of the seized materials. The following day, the President of the United States directed the Attorney General, acting through the Solicitor General, to preserve and seal the records and to make sure no use was made of the materials and that no one had access to them; this directive would expire on July 9, 2006.

On July 10, 2006, the district court denied the Congressman's motion for return of the seized materials. Concluding that execution of the warrant "did not impermissibly interfere with Congressman Jefferson's legislative activities," In re Search of the Rayburn House Office Bldg. Room No. 2113 Washington, D.C. 20515, 432 F.Supp.2d 100, 113 (D.D.C.2006), the district court noted that the warrant sought only materials that were outside of the "legitimate legislative sphere," id. The district court rejected the Congressman's claim that he had a right to remove documents he deemed privileged before execution of the warrant, reasoning that although "some privileged material was incidentally captured by the search" and was subject to "incidental review," "the preconditions for a properly administered warrant that seeks only unprivileged material that falls outside the sphere of legitimate legislative activity are sufficient to protect against" undue Executive intrusion. Id. at 114. The Justice Department, therefore, could regain custody of the seized materials and resume review as of July 10, 2006. See id. at 119. On July 11, 2006, Congressman Jefferson filed a notice of appeal and a motion for a stay pending appeal. According to the brief for the Executive, the Attorney General ordered the FBI to regain custody of the [658] seized materials and imposed an immediate freeze on any review until the district court and this court considered the Congressman's request for a stay pending appeal. See Appellee's Br. at 13. The district court denied a stay on July 19, 2006. See In re Search of the Rayburn House Office Bldg. Room No. 2113, Washington, D.C. 20515, 434 F.Supp.2d 3 (D.D.C.2006).

This court, upon consideration of the Congressman's emergency motion for a stay pending appeal filed on July 20, 2006, enjoined the United States, acting through the Executive, from resuming its review of the seized materials. See Order of July 25, 2006. Three days later, the court remanded the record to the district court to make findings regarding "which, if any, documents (physical or electronic) removed . . . from [the] Congressman['s] . . . office pursuant to a search warrant executed on May 20, 2006, are records of legislative acts." Order of July 28, 2006 ("Remand Order"). The court instructed the district court to: (1) copy and provide the copies of all the seized documents to the Congressman; (2) "using the copies of computer files made by [the Executive], search for the terms listed in the warrant, and provide a list of responsive records to Congressman Jefferson"; (3) provide the Congressman an opportunity to review the records and, within two days, to submit, ex parte, any claims that specific documents are legislative in nature; and (4) "review in camera any specific documents or records identified as legislative and make findings regarding whether the specific documents or records are legislative in nature." Remand Order at 1. In the meantime, the court enjoined the Executive from reviewing any of the seized documents pending further order of this court. Subsequently, the court allowed the Executive to review seized materials that the Congressman "has conceded on remand are not privileged under the Speech or Debate Clause." Order of Nov. 14, 2006. The court ordered expedition of this appeal, id., and oral argument was heard on May 15, 2007.

On June 4, 2007, the grand jury returned a sixteen-count indictment against Congressman Jefferson in the Eastern District of Virginia. United States v. Jefferson, No. 07-0209 (E.D. Va. indictment filed June 4, 2007). The indictment included charges of racketeering, solicitation of (and conspiracy to solicit) bribes, money laundering, wire fraud, and obstruction of justice.^[1] Trial is scheduled to begin with jury selection in January 2008. This court's jurisdiction of the Congressman's appeal rests on the collateral order doctrine. See United States v. Rostenkowski, 59 F.3d 1291, 1296-1300 (D.C.Cir.1995). Neither party suggests that the return of the indictment divests this court of jurisdiction or renders this appeal moot or urges that the court not proceed to decide this appeal.^[2]Cf. In re 3021 6th Ave. N., Billings, MT v. United [659] States, 237 F.3d 1039, 1041 (9th Cir.2001). We agree, for the Executive retains in its possession seized materials, including complete copies of every computer hard drive in Room 2113, which contain legislative material.^[3]See City of Erie v. Pap's A.M., 529 U.S. 277, 287, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000); see also Legal Assistance for Vietnamese Asylum Seekers v. Dep't of State, 74 F.3d 1308, 1311 (D.C.Cir.), vacated on other grounds, 519 U.S. 1, 117 S.Ct. 378, 136 L.Ed.2d 1 (1996). Letting the district court's decision stand until after the Congressman's trial would, if the Congressman is correct, allow the Executive to review privileged material in violation of the Speech or Debate Clause.

II.

The Speech or Debate Clause provides that "for any Speech or Debate in either House, [Members of Congress] shall not be questioned in any other Place." U.S. CONST. art. I, § 6, cl. 1. The version of the Clause adopted by the Founders closely resembles the language adopted in the English Bill of Rights of 1689, which came out of the long struggle for governmental supremacy between the English monarchs and the Parliament, during which the criminal and civil law were used to intimidate legislators. By the time of the Constitutional Convention, the privilege embodied in the Speech or Debate Clause was "recognized as an important protection of the independence and integrity of the legislature," United States v. Johnson, 383 U.S. 169, 178, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966), and was to serve as a protection against possible "prosecution by an unfriendly executive and conviction by a hostile judiciary," id. at 179.

In defining the protections afforded by the Clause, the Supreme Court has limited the scope to conduct that is an integral part of "the due functioning of the legislative process." United States v. Brewster, 408 U.S. 501, 513, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972). The Congressman does not dispute that congressional offices are subject to the operation of the Fourth Amendment and thus subject to a search pursuant to a search warrant issued by the federal district court. The Executive acknowledges, in connection with the execution of a search warrant, that there is a role for a Member of Congress to play in exercising the Member's rights under the Speech or Debate Clause. The parties disagree on precisely when that should occur and what effect any violation of the Member's Speech or Debate rights should have. The Congressman contends that the exercise of his privilege under the Clause must precede the disclosure of the contents of his congressional office to agents of the Executive and that any violation of the privilege requires return of all of the seized materials. The Executive offers that the special procedures described in the warrant affidavit "are more than sufficient to protect Rep[resentative] Jefferson's rights . . . under the Clause," Appellee's Br. at 15-16, and that any violation of the privilege does not deprive the Executive of the right to retain all non-privileged materials within the scope of the search warrant.

The Supreme Court has not spoken to the precise issue at hand. May 20-21, 2006 was the first time a sitting Member's congressional office has been searched by the Executive. The Court has made clear, however, in the context of a grand jury investigation, that "[t]he Speech or Debate Clause was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch." Gravel v. United States, 408 U.S. 606, 616, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972). Although in Gravel the Court [660] held that the Clause embraces a testimonial privilege, id. at 616, to date the Court has not spoken on whether the privilege conferred by the Clause includes a non-disclosure privilege. However, this court has.

Beginning with the observation that the prohibition in the Speech or Debate Clause is "deceptively simple," this court held in Brown & Williamson, 62 F.3d at 415, that the Clause includes a non-disclosure privilege, id. at 420. Noting that the purpose of the Speech or Debate Clause is "`to insure that the legislative function the Constitution allocates to Congress may be performed independently,' without regard to the distractions of private civil litigation or the periods of criminal prosecution," id. at 415 (quoting Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 502, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975)), the court rejected the view that the testimonial immunity of the Speech or Debate Clause applies only when Members or their aides are personally questioned:

Documentary evidence can certainly be as revealing as oral communications — even if only indirectly when, as here, the documents in question . . . do not detail specific congressional actions. But indications as to what Congress is looking at provide clues as to what Congress is doing, or might be about to do — and this is true whether or not the documents are sought for the purpose of inquiring into (or frustrating) legislative conduct or to advance some other goals. . . . We do not share the Third Circuit's conviction that democracy's "limited toleration for secrecy" is inconsistent with an interpretation of the Speech or Debate Clause that would permit Congress to insist on the confidentiality of investigative files.

Id. at 420. As "[d]iscovery procedures can prove just as intrusive" as naming Members or their staffs as parties to a suit, id. at 418 (italics omitted), the court held that "[a] party is no more entitled to compel congressional testimony — or production of documents — than it is to sue congressmen," id. at 421. Further, the court noted, citing Eastland, 421 U.S. at 509, that when the privilege applies it is absolute. Brown & Williamson, 62 F.3d at 416. As such, "if the touchstone is interference with legislative activities," then "the nature of the use to which documents will be put — testimonial or evidentiary — is immaterial." Id. at 421. In the same vein, the court indicated that the degree of disruption caused by probing into legislative acts is immaterial, id. at 419; see also MINPECO, S.A. v. Conticommodity Servs., Inc., 844 F.2d 856, 860 (D.C.Cir.1988).

Thus, our opinion in Brown & Williamson makes clear that a key purpose of the privilege is to prevent intrusions in the legislative process and that the legislative process is disrupted by the disclosure of legislative material, regardless of the use to which the disclosed materials are put. See 62 F.3d at 419. The bar on compelled disclosure is absolute, see Eastland, 421 U.S. at 503, and there is no reason to believe that the bar does not apply in the criminal as well as the civil context. The Executive does not argue otherwise; the search warrant sought only materials not protected by the Speech or Debate Clause. Although Brown & Williamson involved civil litigation and the documents being sought were legislative in nature, the court's discussion of the Speech or Debate Clause was more profound and repeatedly referred to the functioning of the Clause in criminal proceedings. See, e.g., Brown & Williamson, 62 F.3d at 416.^[4]

[661] The search of Congressman Jefferson's office must have resulted in the disclosure of legislative materials to agents of the Executive. Indeed, the application accompanying the warrant contemplated it. In order to determine whether the documents were responsive to the search warrant, FBI agents had to review all of the papers in the Congressman's office, of which some surely related to legislative acts. This compelled disclosure clearly tends to disrupt the legislative process: exchanges between a Member of Congress and the Member's staff or among Members of Congress on legislative matters may legitimately involve frank or embarrassing statements; the possibility of compelled disclosure may therefore chill the exchange of views with respect to legislative activity. This chill runs counter to the Clause's purpose of protecting against disruption of the legislative process.

The Executive and the district court appear to have proceeded on the premise that the scope of the privilege narrows when a search warrant is at issue. In the district court's view, the Speech or Debate Clause was not implicated by execution of the search warrant because a seizure of documents did not involve a testimonial element. See Rayburn, 432 F.Supp.2d at 111-12. Both also emphasized that the search warrant sought only non-privileged materials as a basis for distinguishing Brown & Williamson, and looked to the procedural protections afforded by the issuance of a valid search warrant available only in criminal investigations as eliminating any threat to Congress's capacity to function effectively. Our concurring colleague takes much the same approach, failing to distinguish between the lawfulness of searching a congressional office pursuant to a search warrant and the lawfulness of the manner in which the search is executed in view of the protections afforded against compelled disclosure of legislative materials by the Speech or Debate Clause. The considerations voiced by our concurring colleague and the district court may demonstrate good faith by the Executive, but they fail to adhere to this court's interpretation of the scope of the testimonial privilege under the Speech or Debate Clause, much less to the Supreme Court's interpretation of what constitutes core legislative activities, see Brewster, 408 U.S. at 526, and the history of the Clause. While the Executive characterizes what occurred as the "incidental review of arguably protected legislative materials," Appellee's Br. at 15, it does not deny that compelled review by the Executive occurred, nor that it occurred in a location where legislative materials were inevitably to be found, nor that some impairment of legislative deliberations occurred.

Reliance by the Executive and the district court on Zurcher v. Stanford Daily, 436 U.S. 547, 566-67, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978), is misplaced. There, the Supreme Court rejected the argument that the First Amendment imposed a bar to third-party search warrants absent a prior opportunity by the press to litigate the state's entitlement to the material before it is turned over or seized. However, in Zurcher, the Supreme Court did not address whether a particular search was invalid because it was unconstitutional in its design and implementation; nor did it involve a privilege that absolutely shields records from non-voluntary disclosure. Contrary to the Executive's understanding on appeal, it is incorrect to suggest that Congressman Jefferson's position is that he was entitled to prior notice of the [662] search warrant before its execution, without regard to the Executive's interests in law enforcement. The Congressman makes clear in his brief that he is not suggesting advance notice is required by the Constitution before Executive agents arrive at his office. See Appellant's Br. at 36. Rather he contends legislative and executive interests can be accommodated without such notice, as urged, for example by the Deputy Counsel to the House of Representatives: "We're not contemplating advance notice to the [M]ember to go into his office to search his documents before anyone shows up," but rather that "[t]he Capitol [P]olice would seal the office so that nothing would go out of that office and then the search would take place with the [M]ember there." Tr. of Hr'g, June 16, 2006, at 35; see Appellant's Br. at 36. Neither does the Congressman maintain that the Speech or Debate Clause protects unprivileged evidence of unprivileged criminal conduct. Nor has the Congressman argued that his assertions of privilege could not be judicially reviewed, only that the warrant procedures in this case were flawed because they afforded him no opportunity to assert the privilege before the Executive scoured his records. See Appellant's Br. at 37.

The special procedures outlined in the warrant affidavit would not have avoided the violation of the Speech or Debate Clause because they denied the Congressman any opportunity to identify and assert the privilege with respect to legislative materials before their compelled disclosure to Executive agents. Indeed, the Congressman, his attorney, and counsel for the House of Representatives were denied entry into Room 2113 once the FBI arrived. The special procedures described in the warrant affidavit called for review by FBI agents and the several members of the Justice Department filter team before the Congressman would be afforded an opportunity to identify potentially privileged materials. This procedure is significantly different even from those the Executive has on occasion afforded to other privileges not protected in the Constitution; for example, in United States v. Search of Law Office, 341 F.3d 404, 407 (5th Cir.2003), the privilege holder was allowed an opportunity to identify documents protected under the attorney-client privilege at the point the search was completed. Although the Supreme Court in Weatherford v. Bursey, 429 U.S. 545, 558, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977), distinguished between the receipt of privileged information by an agent of the Executive and by the prosecution team in the context of a civil rights claim based on a Sixth Amendment violation, the nature of the considerations presented by a violation of the Speech or Debate Clause is different. If the testimonial privilege under the Clause is absolute and there is no distinction between oral and written materials within the legislative sphere, then the non-disclosure privilege for written materials described in Brown & Williamson, 62 F.3d at 421, is also absolute, and thus admits of no balancing, cf. United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); Moody v. IRS, 654 F.2d 795, 799 (D.C.Cir.1981). The compelled disclosure of legislative materials to FBI agents executing the search warrant was not unintentional but deliberate — a means to uncover responsive non-privileged materials.

There would appear to be no reason why the Congressman's privilege under the Speech or Debate Clause cannot be asserted at the outset of a search in a manner that also protects the interests of the Executive in law enforcement. To the extent the Executive expresses concern about the burdens placed upon the district court and attendant delay during judicial review of seized materials, the Remand Order illustrates a streamlined approach by narrowing the number of materials the district [663] court may be required to review. The historical record utterly devoid of Executive searches of congressional offices suggests the imposition of such a burden will be, at most, infrequent. Regardless of whether the accommodation is by initially sealing the office to be searched before the Member is afforded an opportunity to identify potentially privileged legislative materials prior to any review by Executive agents or by some other means, seriatim initial reviews by agents of the Executive of a sitting Member's congressional office are inconsistent with the privilege under the Clause. How that accommodation is to be achieved is best determined by the legislative and executive branches in the first instance.^[5] Although the court has acknowledged, where it is not a Member who is subject to criminal proceedings, that the privilege might be less stringently applied when inconsistent with a sovereign interest, see Brown & Williamson, 62 F.3d at 419-20; supra note 4, this observation has no bearing here and is relevant, if at all, to the question of remedy for a violation, not the determination of whether a violation has occurred.

Accordingly, we hold that a search that allows agents of the Executive to review privileged materials without the Member's consent violates the Clause. The Executive's search of the Congressman's paper files therefore violated the Clause, but its copying of computer hard drives and other electronic media is constitutionally permissible because the Remand Order affords the Congressman an opportunity to assert the privilege prior to disclosure of privileged materials to the Executive; the Executive advises, see Appellee's Br. at 14, 62-63, that no FBI agent or other Executive agent has seen any electronic document that, upon adjudication of the Congressman's claim of privilege, may be determined by the district court to be privileged legislative material.

III.

The question remains what the appropriate remedy is under Rule 41(g) for a violation of the Speech or Debate Clause. The 1989 Advisory Committee Notes to Rule 41(e)^[6] state:

No standard is set forth . . . to govern the determination of whether property should be returned to a person aggrieved either by an unlawful seizure or by deprivation of the property. . . . If the United States has a need for the property in an investigation or prosecution, its retention of the property generally is reasonable. But, if the United States' legitimate interests can be satisfied even if the property is returned, continued retention of the property would become unreasonable.

(emphasis added). Our task is to determine how to reconcile the scope of the protection that is afforded to a Member of Congress under the Speech or Debate Clause with the Executive's Article II responsibilities for law enforcement.

Clearly a remedy in this case must show particular respect to the fact that the Speech or Debate Clause "reinforces the [664] separation of powers and protects legislative independence." Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1, 8 (D.C.Cir.2006) (en banc) (collecting cases). Congressman Jefferson argued in the district court that he has suffered irreparable harm with no adequate remedy available at law because the violation of his constitutional rights cannot be vindicated by an action at law or damages or any other traditional relief.^[7] On appeal, however, the Congressman makes no claim that the functioning of his office has been impaired by loss of access to the original versions of the seized documents; the Remand Order directed that he be given copies of all seized documents. Remand Order of July 28, 2007. Perhaps more to the point, however, he contends that complete return of all seized materials is the only remedy that vindicates the separation of powers principles underlying the Speech or Debate Clause and serves as an appropriate deterrent to future violations.

Although the search of Congressman Jefferson's paper files violated the Speech or Debate Clause, his argument does not support granting the relief that he seeks, namely the return of all seized documents, including copies, whether privileged or not. Taking his assertions in reverse order, such relief is unnecessary to deter future unconstitutional acts by the Executive. There is no indication that the Executive did not act based on a good faith interpretation of the law, as reflected in the district court's prior approval and later defense of the special procedures set forth in the warrant affidavit. While the Fourth Amendment issue is not before us, the Supreme Court's instruction in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), is relevant to the extent the Congressman invokes deterrence as a rationale for the remedy he seeks under Rule 41(g). In addressing application of the exclusionary rule in the context of the Fourth Amendment, the Supreme Court pointed out in Leon that "[p]articularly when law enforcement officers have acted in objective good faith [on a warrant issued by a neutral magistrate] or their transgressions have been minor," the possible benefit from exclusion, in terms of future deterrence, is limited, 468 U.S. at 907-08, 104 S.Ct. 3405. Additionally, with respect to concern about future actions by the Executive, this is the only time in this Nation's history that the Executive has searched the office of a sitting Member of Congress. Our holding regarding the compelled disclosure of privileged documents to agents of the Executive during the search makes clear that the special procedures described in the warrant affidavit are insufficient to protect the privilege under the Speech or Debate Clause. This too should ameliorate concerns about deterrence.

At the same time, the remedy must give effect not only to the separation of powers underlying the Speech or Debate Clause but also to the sovereign's interest under Article II, Section 3 in law enforcement. The following principles govern our conclusion. The Speech or Debate Clause protects against the compelled disclosure of privileged documents to agents of the Executive, but not the disclosure of non-privileged materials. Its "shield does not extend beyond what is necessary to preserve [665] the integrity of the legislative process," Brewster, 408 U.S. at 517, and it "does not prohibit inquiry into illegal conduct simply because it has some nexus to legislative functions," id. at 528. This particular search needlessly disrupted the functioning of the Congressman's office by allowing agents of the Executive to view legislative materials without the Congressman's consent, even though a search of a congressional office is not prohibited per se. Still, the Congressman makes no claim in his brief, much less any showing, that the functioning of his office has been disrupted as a result of not having possession of the original versions of the non-privileged seized materials. Most important, to construe the Speech or Debate Clause as providing an absolute privilege against a seizure of non-privileged materials essential to the Executive's enforcement of criminal statutes pursuant to Article II, Section 3 on no more than a generalized claim that the separation of powers demands no less would, as the Supreme Court has observed, albeit as to a qualified privilege, "upset the constitutional balance of `a workable government.'" Nixon, 418 U.S. at 707, 94 S.Ct. 3090 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (Jackson, J., concurring)). The Supreme Court has instructed that the Clause is to be applied "in such a way as to insure the independence of the legislature without altering the historic balance of the three co-equal branches of Government." Brewster, 408 U.S. at 508, 92 S.Ct. 2531; see Fields, 459 F.3d at 9.

Applying these principles, we conclude that the Congressman is entitled, as the district court may in the first instance determine pursuant to the Remand Order, to the return of all materials (including copies) that are privileged legislative materials under the Speech or Debate Clause. Where the Clause applies its protection is absolute. For the reasons stated, absent any claim of disruption of the congressional office by reason of lack of original versions, it is unnecessary to order the return of non-privileged materials as a further remedy for the violation of the Clause. The Congressman has suggested no other reason why return of the non-privileged documents is required pursuant to Rule 41(g), and, in any event, it is doubtful that the court has jurisdiction to entertain such arguments following the return of the indictment. Unlike the Congressman's request for the return of legislative materials protected by the Speech or Debate Clause, the further claim for the return of all non-privileged materials is not independent of the criminal prosecution against him, especially if the legality of the search will be a critical issue in the criminal trial. See In re 3021 6th Ave. N., 237 F.3d at 1041 (citing DiBella v. United States, 369 U.S. 121, 131-32, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962)); In re Search of the Premises Known as 6455 South Yosemite, 897 F.2d 1549, 1554-56 (10th Cir.1990); United States v. Mid-States Exchange, 815 F.2d 1227, 1228 (8th Cir.1987) (per curiam). We agree with the Ninth Circuit's holding that the 1989 amendment to Rule 41, eliminating the coupling of a motion for the return of property under Rule 41 and a motion to exclude evidence at trial, FED. R.CRIM.P. 41(g), does not affect DiBella's controlling force, which balanced the individual and government interests and their relationship to trial delays or disruptions, 369 U.S. at 124, 126, 129, 82 S.Ct. 654; see, e.g., In re 3021 6th Ave. N., 237 F.3d at 1041. See generally 15B CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3918.4 (2d ed.1992). Although the Congressman's further request is solely for the return of property, his Rule 41(g) motion is "tied to a criminal prosecution in esse against the movant," DiBella, 369 U.S. at 132, 82 S.Ct. 654; it is of no moment that the indictment was filed in another district, [666] id. The fact that the prosecution has commenced "will afford . . . adequate opportunity to challenge the constitutionality of the search of his . . . office," and hence "there is now no danger that the [Executive] might retain [the Congressman's] property indefinitely without any opportunity . . . to assert on appeal his right to possession"; hence there is "no basis upon which to grant piecemeal review of [his further] claim [for non-privileged materials]." United States v. Search Warrant for 405 N. Wabash, Suite 3109, 736 F.2d 1174, 1176 (7th Cir.1984).

Accordingly, we hold that the Congressman is entitled to the return of all legislative materials (originals and copies) that are protected by the Speech or Debate Clause seized from Rayburn House Office Building Room 2113 on May 20-21, 2006. Further, as contemplated by the warrant affidavit, see Thibault Aff. ¶¶ 137-38, the FBI agents who executed the search warrant shall continue to be barred from disclosing the contents of any privileged or "politically sensitive and non-responsive items," id. ¶ 138, and they shall not be involved in the pending prosecution or other charges arising from the investigation described in the warrant affidavit other than as regards responsiveness, id.

KAREN LECRAFT HENDERSON, Circuit Judge, concurring in the judgment:

When all of the brush is cleared away, this case presents a simple question: can Executive Branch personnel—here, special agents of the Federal Bureau of Investigation—execute a search warrant directed to the congressional office of a Member of the Congress (Member) without doing violence to the Speech or Debate Clause (Clause) set forth in Article I, Section 6, Clause 1 of the United States Constitution?^[8] The limited United States Supreme Court precedent regarding the applicability of the Clause in the criminal context makes one thing clear—the Clause "does not purport to confer a general exemption upon Members of Congress from liability or process in criminal cases. Quite the contrary is true." Gravel v. United States, 408 U.S. 606, 626, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972) (emphasis added). It appears that neither the Supreme Court nor any inferior court has addressed the question as I view it and the single holding from our court on which the majority almost exclusively relies to answer the question in the negative decides only the Clause's applicability to a civil subpoena obtained by private parties who sought certain files in the possession of a congressional subcommittee. See Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408 (D.C.Cir.1995) (Clause barred enforcement of subpoenas duces tecum issued to two members of House Subcommittee on Health and Environment); Maj. Op. at 659-61 (relying on Brown & Williamson because "[t]he Supreme Court has not spoken").^[9] But Brown & Williamson's [667] brief comments regarding the Clause in the criminal context—which comments importantly acknowledge the Clause's less categorical scope in that context^[10] — remain dicta no matter how "profound." Maj. Op. at 661. I believe the question can be directly answered "yes" without resort to dicta or any other indirect support or theory. Accordingly, while I concur in the judgment which affirms the district court's denial of Representative William J. Jefferson's (Rep.Jefferson) Rule 41(g) motion, I do not agree with the majority's reasoning and distance myself from much of its dicta.

The Supreme Court has made clear that the two elements of the privilege—"Speech or Debate" and "question[ing]"—must "be read broadly to effectuate its purposes." United States v. Johnson, 383 U.S. 169, 180, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966). As our court has noted, the "touchstone" of the Clause "is interference with legislative activities," see Brown & Williamson, 62 F.3d at 421; the Clause is therefore "designed to protect Congressmen `not only from the consequences of litigation's results but also from the burden of defending themselves'" for their legislative actions, Helstoski v. Meanor, 442 U.S. 500, 508, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979) (quoting Dombrowski v. Eastland, 387 U.S. 82, 85, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967)); see also Johnson, 383 U.S. at 179, 86 S.Ct. 749 (Clause "protect[s] [the legislature] against possible prosecution by an unfriendly executive and conviction by a hostile judiciary"). Still, the "speech or debate privilege was designed to preserve legislative independence, not supremacy." United States v. Brewster, 408 U.S. 501, 508, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972) (emphasis added).

There is no dispute that the issuance of the search warrant for Rep. Jefferson's congressional office does not violate the Clause. See Maj. Op. at 659. The "Speech or Debate" protected by the Constitution includes only "legitimate legislative activity," see, e.g., Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), and "[t]aking a bribe is, obviously, no part of the legislative process or function; it is not a legislative act," Brewster, 408 U.S. at 526, 92 S.Ct. 2531. Here, the warrant sought only "fruits, instrumentalities and evidence of violations of" various federal bribery and fraud statutes involving Rep. Jefferson,^[11]see Warrant Aff., reprinted in Joint Appendix (JA) at 7; Sealed Appendix (SA) 18-25, which plainly are outside the bounds of protected legislative activities, see Brewster, 408 U.S. at 526, 92 S.Ct. 2531. Having found "probable cause to believe that" Rep. Jefferson's congressional office "contains property constituting evidence of the commission of . . . bribery of a public official, . . . wire fraud[,] . . . bribery of a foreign official . . . [and] conspiracy to commit" these crimes and having issued a search warrant aimed solely at such evidence, see Warrant Aff. at JA 87-88 (internal citations omitted), the district court ensured that the warrant encompassed only unprivileged records. And it is, of course, the judiciary, not the executive or legislature, that delineates the scope of the privilege. See United States v. Nixon, 418 U.S. 683, 703-04, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (citing Speech or Debate Clause cases to illustrate judicial power to define scope of executive privilege); cf. In re Search of Rayburn House Ofice Bldg. Room No. 2113 (Rayburn), 432 F.Supp.2d 100, 116 [668] (D.D.C.2006) ("A federal judge is not a mere rubber stamp in the warrant process, but rather an independent and neutral official sworn to uphold and defend the Constitution.").

Notwithstanding the search warrant sought only unprivileged records, Rep. Jefferson's congressional office, as the warrant itself manifests,^[12] also contained records, paper and electronic, of legislative acts to which the Clause's protection extends. Execution of the warrant necessarily required the FBI agents to separate unprivileged responsive records from privileged records of legislative acts. It is this aspect of the warrant's execution that Rep. Jefferson claims violated the Clause because it constituted impermissible "question[ing]" of him. See Appellant's Br. at 13-22; U.S. Const. Art. I, § 6, cl. 1. I disagree.^[13]

The execution of a valid search warrant is an "exercise of executive power," United States v. Grubbs, 547 U.S. 90, 126 S.Ct. 1494, 1501, 164 L.Ed.2d 195 (2006) (internal quotation omitted), and, as noted, the Supreme Court has made clear that the Clause "does not purport to confer a general exemption upon Members of Congress" from criminal process, Gravel, 408 U.S. at 626, 92 S.Ct. 2614.^[14] Nevertheless, my colleagues conclude that the holding in Brown & Williamson, see 62 F.3d at 418-21, establishes that "the disclosure of legislative [669] material" during the execution of a search warrant, Maj. Op. at 660, amounts to prohibited "question[ing]" because the Clause embodies a broad "non-disclosure privilege," Maj. Op. at 660, that safeguards the absolute confidentiality of legislative records even from criminal process. With respect, I believe they vastly over-read Brown & Williamson. That holding prohibited the production of certain records in a congressional subcommittee's possession in response to a civil subpoena. See Brown & Williamson, 62 F.3d at 418-19 (citing MINPECO, S.A. v. Conticommodity Servs., Inc., 844 F.2d 856, 857-59 (D.C.Cir.1988)). It found no functional difference between compelling a Member to be "questioned" orally and compelling him to produce documents in response to a subpoena. See id. at 420-21.

Yet, as the district court noted, "the difference between a warrant and a subpoena is of critical importance here." Rayburn, 432 F.Supp.2d at 111. Answering a civil subpoena requires the individual subpoenaed to affirmatively act; he either produces the testimony/documents sought or challenges the subpoena's validity. In contrast, a search warrant requires that the individual whose property is to be searched do nothing affirmative. Instead, the search must first meet the requirements of the Fourth Amendment via the prior approval of "a neutral and detached magistrate," Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948), and, upon that official's finding of probable cause, the warrant "authorizes Government officers to seize evidence without requiring enforcement through the courts," United States v. Miller, 425 U.S. 435, 446 n. 8, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976). The property owner is not required to respond either orally or by physically producing the property, including records. Cf. Johnson v. United States, 228 U.S. 457, 458, 33 S.Ct. 572, 57 L.Ed. 919 (1913) (under Fifth Amendment "[a] party is privileged from producing the evidence, but not from its production"). The FBI agents' execution of the warrant on Rep. Jefferson's congressional office did not require the latter to do anything and accordingly falls far short of the "question[ing]" the court in Brown & Williamson found was required of a Member in response to a civil subpoena.

Moreover, as the majority recognizes, see Maj. Op. at 660, in Brown & Williamson we relied heavily on the Clause's purpose—shielding the legislative process from disruption—in reading the Clause's prohibition of "question[ing]" broadly to protect the "confidentiality," see Brown & Williamson, 62 F.3d at 417-21, of records from the reach of a civil subpoena. Noting that the Speech or Debate "privilege is not designed to protect the reputations of congressmen but rather the functioning of Congress," id. at 419, the court concluded that document production threatened to distract the two Members from their legislative duties, see id. at 418 (quoting MINPECO, 844 F.2d at 859). We declared that "[d]ocumentary evidence can certainly be as revealing as oral communications," providing "clues as to what Congress is doing, or might be about to do," id. at 420, and thereby potentially defeating the Clause's purpose to "insulate Members of Congress from distractions that `divert their time, energy, and attention from their legislative tasks,'" id. at 421 (quoting MINPECO, 844 F.2d at 859 (quoting Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 503, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975))). Given this purpose, we concluded that the Clause "permit[s] Congress to insist on the confidentiality of investigative files" and therefore barred enforcement of the subpoena. Id. at 420.

Brown & Williamson's non-disclosure rule, however, does not extend to criminal process. Although the presence of FBI [670] agents executing a search warrant in a Member's office necessarily disrupts his routine, the alternative procedure proposed by Rep. Jefferson—sealing the office and permitting him to first label his records (paper and electronic) as privileged and unprivileged—would no doubt take much more of his time. Moreover, the FBI agents responsible for the search of Rep. Jefferson's congressional office went to great lengths to minimize disruption^[15] by, inter alia, executing the warrant when the Congress was not meeting, imaging computer hard drives rather than searching the computers, using specific search terms for both paper and electronic records and, most important, creating Filter Teams—one for paper records and one for electronic records—and ensuring subsequent in camera judicial review to minimize exposure to privileged records. See Warrant Aff. at JA 79-87. The Filter Teams consisted of FBI agents with no prior "role or connection to the investigation" of Rep. Jefferson and whose "roles in the investigation [were] confined to . . . review[ing] the . . . records seized from the Office to validate that they are responsive to the list" contained in the warrant. Id. at 81 (describing filtering procedures for paper records); id. at 84-85 (electronic records). By creating the Filter Teams and "[b]y requiring judicial approval before any arguably privileged documents could be shared with the prosecution team, the search procedures as a whole eliminated any realistic possibility that evidence of Rep. Jefferson's legislative acts would be used against him." Appellee's Br. at 26.

Disruption aside, it is well settled that a Member is subject to criminal prosecution and process. See Brewster, 408 U.S. at 516, 92 S.Ct. 2531 (Clause's "purpose [is not] to make Members of Congress super-citizens, immune from criminal responsibility"); Gravel, 408 U.S. at 626, 92 S.Ct. 2614.^[16] The core activity protected by the Clause—speech in either chamber of the Congress—is a public act. In essence, therefore, what the Clause promotes is the Member's ability to be open in debate— free from interference or restriction— rather than any secrecy right. That candor is the animating purpose of the Clause is plain from the historical roots of the privilege. In drafting the Speech or Debate Clause, the Framers drew upon English history and the "long struggle for parliamentary supremacy" against "Tudor and Stuart monarchs during which successive monarchs utilized the criminal and civil law to suppress and intimidate critical legislators" from publicly opposing the Crown. Johnson, 383 U.S. at 178, 86 S.Ct. 749; see also Tenney, 341 U.S. at 372, 71 S.Ct. 783 ("The privilege of legislators to be free from arrest or civil process for what they do or say in legislative proceedings has taproots in the Parliamentary struggles of the Sixteenth and Seventeenth Centuries.").

And while it is true that, once it attaches, the Clause "is an absolute bar to interference" with legislators, Eastland, 421 U.S. at 503, 95 S.Ct. 1813 (citing Doe v. McMillan, 412 U.S. 306, 314, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973)), recognizing [671] that the privilege is absolute once it attaches begs the question whether the Clause attaches to begin with.^[17] Significantly, in Brown & Williamson we expressly recognized that the Clause's "testimonial privilege might be less stringently applied when inconsistent with a sovereign interest," such as the conduct of criminal proceedings. 62 F.3d at 419-20 (distinguishing Gravel's criminal context from civil subpoena). My colleagues qualify Brown & Williamson's reference to Gravel, noting "it [was] not a Member who [was] subject to criminal proceedings" or process in Gravel. Maj. Op. at 663. Yet, to the extent the majority reads Brown & Williamson to limit Gravel to process served on a congressional aide during a criminal investigation of a third party, that reading mischaracterizes both Brown & Williamson and Gravel. Gravel's holding that the Clause does not "immunize Senator or aide from testifying at trials or grand jury proceedings involving third-party crimes" is replete with observations that the Clause "provides no protection for criminal conduct . . . performed at the direction of the [Member] . . . or done without his knowledge" by an aide. Gravel, 408 U.S. at 622, 92 S.Ct. 2614. Gravel makes unmistakably clear that a Member — not just a staffer — is subject to criminal liability and process, see, e.g., Gravel, 408 U.S. at 626, 92 S.Ct. 2614 (Clause "does not privilege either Senator or aide to violate an otherwise valid criminal law in preparing for or implementing legislative acts" (emphasis added)), so that Brown & Williamson's reference to "Gravel's sensitivities to the existence of criminal proceedings against persons other than Members of Congress" does no more than describe the Gravel facts, Brown & Williamson, 62 F.3d at 419. Indeed, Gravel "refus[ed] to distinguish between Senator and aide in applying the Speech or Debate Clause," Gravel, 408 U.S. at 622 (emphasis added), finding instead the existence of criminal proceedings dispositive, id. at 626. As Gravel noted, his aide's privilege derives from the Member's. Id. at 616-17 (describing aide as Member's "alter ego[]"). Because Gravel stresses the significance of criminal proceedings, rather than their target, and because his aide can invoke the Clause only if the Member can do so, the majority is wrong in maintaining that Gravel's language as construed in Brown & Williamson is limited to "third-party" crime.^[18]

Moreover, as the government points out, to conclude that the Clause's shield protects against any Executive Branch exposure to records of legislative acts would jeopardize law enforcement tools "that have never been considered problematic." Appellee's Br. at 37; see also Rayburn, 432 F.Supp.2d at 110 ("Carried to its logical conclusion, this argument would require [672] a Member . . . to be given advance notice of any search of his property, including property outside of his congressional office, such as his home or car, and further that he be allowed to remove any material he deemed to be covered by the legislative privilege prior to a search."). If Executive Branch exposure alone violated the privilege, "agents . . . could not conduct a voluntary interview with a congressional staffer who wished to report criminal conduct by a Member or staffer, because of the possibility . . . that the staffer would discuss legislative acts in . . . describing the unprivileged, criminal conduct." Appellee's Br. at 38. Such a rule would also "presumably apply to surveillance of a Member or staffer who might discuss legislative matters with another Member or staffer." Id. Furthermore, "[d]epriving the Executive of the power to investigate and prosecute and the Judiciary of the power to punish bribery of Members of Congress is unlikely to enhance legislative independence." Brewster, 408 U.S. at 525 (emphasis added); see id. at 524-25 (reasoning that "financial abuses by way of bribes, perhaps even more than Executive power, would gravely undermine legislative integrity and defeat the right of the public to honest representation"). On the other hand, limiting the law enforcement tools that may be used to investigate Members does undermine the "legitimate needs of the judicial process," specifically, the "primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions." Nixon, 418 U.S. at 707. Recognizing the strength of these constitutional interests, the Supreme Court limited the scope of executive privilege —which is unquestionably a confidentiality rule-by permitting in camera judicial review of executive records to meet "[t]he need to develop all relevant facts" in a criminal prosecution. Id. at 709. The majority, in barring Executive Branch execution of a search warrant—and, by extension, other common investigatory tools—based on mere exposure to privileged records, checks the Judicial Branch as well. Cf. Brewster, 408 U.S. at 508 ("speech or debate privilege was designed to preserve legislative independence, not supremacy") (emphasis added).^[19]

In sum, I believe the Executive Branch's execution of a search warrant on a congressional office-with its unavoidable but minimal exposure to records of legislative acts-does not constitute "question[ing]" within the meaning of the Speech or Debate Clause. On this reading of the Clause, Rep. Jefferson remains subject to the same criminal process that applies to his constituents. See Gravel, 408 U.S. at 626. As "[t]he laws of this country allow no place or employment as a sanctuary for [673] crime," Williamson v. United States, 207 U.S. 425, 439, 28 S.Ct. 163, 52 L.Ed. 278 (1908) (quoting King v. Willkes, 2 Wils. 151 (1763)), I would conclude that the Speech or Debate Clause does not bar the Executive Branch's execution of a search warrant on a congressional office and, accordingly, deny Rep. Jefferson's Rule 41(g) motion.^[20]

[1] The indictment charged: Count 1, Conspiracy to Solicit Bribes by a Public Official, Deprive Citizens of Honest Services by Wire Fraud, and Violate the Foreign Corrupt Practices Act, 18 U.S.C. § 371; Count 2, Conspiracy to Solicit Bribes by a Public Official, Deprive Citizens of Honest Services by Wire Fraud, id. § 371; Counts 3 & 4, Solicitation of Bribes by a Public Official, id. § 201(b)(2)(A); Counts 5 to 10, Scheme to Deprive Citizens of Honest Services by Wire Fraud, id. §§ 1343 and 1346; Count 11, Foreign Corrupt Practices Act, 15 U.S.C. § 78dd-2(a); Counts 12-14, Money Laundering, 18 U.S.C. § 1957; Count 15, Obstruction of Justice, 18 U.S.C. § 1512(c)(1); Count 16, Racketeer Influenced Corrupt Organization, Pattern of Racketeering Activity (RICO), id. § 1962(c).

[2] See Letter from Roy W. McLeese III, Assistant United States Attorney, to Mark J. Langer, Clerk (June 7, 2007); Letter from Robert P. Trout, Esquire, to Mark J. Langer, Clerk (June 11, 2007).

[3] Letter from Robert P. Trout, supra note 2.

[4] The court also acknowledged that the Supreme Court's "sensitivities" in Gravel, 408 U.S. at 614, 92 S.Ct. 2614, "to the existence of criminal proceedings against persons other than Members of Congress at least suggest that the testimonial privilege might be less stringently applied when inconsistent with a sovereign interest." Brown & Williamson, 62 F.3d at 419-20. As we note below, this possibility is not applicable to the present case.

[5] See Amicus Br. of Hon. Abner J. Mikva at 18; Amicus Br. of Scott Palmer, Elliot S. Berke, and Reid Stuntz, and Philip Kiko (former senior congressional staffers) at 26. Compare Amicus Br. of Thomas S. Foley, Newt Gingrich and Robert H. Michel (former Speakers of the U.S. House of Representatives) at 27-30 (suggesting specific alternative procedures for search of congressional offices); Amicus Br. of Stanley M. Brand et al. (former counsel to the U.S. House of Representatives and the Senate and scholars) at 28-29 (same).

[6] As a result of the 2002 Amendments, Rule 41(e) now appears with minor stylistic changes as Rule 41(g). United States v. Albinson, 356 F.3d 278, 279 n. 1 (3d Cir.2004).

[7] See In re Search of Law Office, 341 F.3d at 414 & n. 49 (holding that district court must find "at the very least, a substantial showing of irreparable harm" in order to suppress seized evidence under Rule 41(e), citing G.M. Leasing Corp. v. United States, 429 U.S. 338, 359-60, 97 S.Ct. 619, 50 L.Ed.2d 530 (1977)); Ramsden v. United States, 2 F.3d 322, 325 (9th Cir.1993) ("agree[ing] with the Fifth, Eighth, and Tenth Circuits that a district court must determine whether a movant will suffer irreparable injury when considering whether to reach the merits of a preindictment Rule 41(e) motion").

[8] The Clause provides that "for any Speech or Debate in either House" "[t]he Senators and Representatives" "shall not be questioned in any other Place." U.S. Const. Art. I, § 6, cl. 1 (emphases added).

[9] Contrary to the majority's assertion that "[t]he Executive does not argue" that the Clause's "bar on compelled disclosure" "does not apply in the criminal as well as the civil context," Maj. Op. at 660, the government expressly argues that "[t]he execution of a search warrant . . . is far removed from the core concerns animating the Clause," Appellee's Br. at 44, and therefore "the protections of the Clause . . . cannot extend to precluding search warrants," id. at 45. With respect to our precedent, moreover, the government asserts that "Brown & Williamson itself distinguished between civil subpoenas and criminal proceedings, and limited its holding to the former." Id. at 47. Finally, the government repeatedly emphasizes the consequences for law enforcement if a non-disclosure rule is recognized in the criminal context. See id. at 37-38.

[10] See infra pp. 659-60.

[11] They include 18 U.S.C. § 201 (bribery of public official), 18 U.S.C. §§ 1343, 1346 and 1349 (wire fraud and deprivation of honest services), 15 U.S.C. §§ 78dd-1 et seq. (bribery of foreign official) and 18 U.S.C. § 371 (conspiracy to commit bribery, wire fraud and bribery of foreign official). See Warrant Aff. at JA 7.

[12] The warrant includes "special procedures in order to minimize the likelihood that any potentially politically sensitive, non-responsive items in the Office will be seized" by "identify[ing] information that may fall within the purview of the Speech or Debate Clause . . . or any other pertinent privilege." Warrant Aff. at JA 79; see also id. at JA 80-87 (directing search team to seize only records responsive to warrant and to provide potentially privileged records to Rep. Jefferson and to district court to determine privilege vel non); Search Warrant (May 21, 2006), reprinted in JA at 3 (incorporating Warrant Affidavit by reference).

[13] The majority is incorrect in suggesting that I "fail[ ] to distinguish between the lawfulness of searching a congressional office pursuant to a search warrant and the lawfulness of the manner in which the search is executed." Maj. Op. at 661. The distinction is what these fourteen pages discuss. The warrant was lawfully issued because it does not seek evidence of "[a] legislative act . . . generally done in Congress in relation to the business before it," United States v. Brewster, 408 U.S. 501, 512, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972), but rather evidence of crimes, see supra pp. 655-56. Unlike the majority, however, I believe that neither the Supreme Court nor Brown & Williamson holds that the Clause precludes Executive Branch execution of a search warrant. See infra pp. 657-61.

[14] Rep. Jefferson places considerable emphasis on the fact that "the executive branch executed a search warrant on the legislative office of a sitting Member of Congress for the first time in the history of the United States." Appellant's Br. at 1. That does not mean that the Executive Branch is without power to execute such a warrant; it just as likely indicates that never before has the Executive Branch found its use necessary. Indeed, this unique moment in our nation's history is largely of the Representative's own making. For months, the government repeatedly tried and failed— due in part to Rep. Jefferson's invocation of his Fifth Amendment right—to obtain records in his congressional office via a series of subpoena duces tecum. See SA at 54-74. Only after failing to obtain the records through investigative means within Rep. Jefferson's ability to control did the government turn to a search warrant, which minimizes Rep. Jefferson's role—and his Fifth Amendment right. Moreover, Rep. Jefferson's proposed method of warrant execution—first sealing his office and allowing him to separate privileged from non-privileged records-effectively eliminates the distinction between a search warrant and a subpoena. His proposal would resurrect his Fifth Amendment right because presumably he would respond as he did to the subpoena duces tecum. See infra pp. 657-58.

[15] "[T]he physical search of the Office [was] conducted by Special Agents . . . [with] no substantive role in the investigation" of Rep. Jefferson. Warrant Aff. at JA 80. These "`non-case agents'" reviewed the records in Rep. Jefferson's office only "to determine if they [were] responsive to the list of items" in the warrant, thereafter "deliver[in] the seized . . . records to" the Filter Teams. Id.

[16] Cf. U.S. Const. Art. I, § 6, cl. 1: "The Senators and Representatives . . . shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same. . . ." (emphasis added).

[17] In concluding that "there is no reason to believe that the [nondisclosure rule] does not apply in the criminal as well as the civil context," Maj. Op. at 660, my colleagues first acknowledge that "Brown & Williamson involved civil litigation," id. at 660. Nonetheless they believe Brown & Williamson's discussion of the Clause was "more profound," applying equally in the criminal context merely because it "repeatedly referred to the functioning of the Clause in criminal proceedings." Id. Likewise, my colleagues' notion that Brown & Williamson applies to criminal matters because the Clause's "bar on compelled disclosure is absolute," id. at 660, again begs the question whether Brown & Williamson's non-disclosure rule applies to criminal matters at all.

[18] Unlike the Brown & Williamson dicta, Gravel's discussion of the Clause's applicability to Members should direct our analysis. See United States v. Dorcely, 454 F.3d 366, 375 (D.C.Cir.2006) ("`carefully considered language of the Supreme Court, even if technically dictum, generally must be treated as authoritative'" (quoting Sierra Club v. EPA, 322 F.3d 718, 724 (D.C.Cir.2003))).

[19] Again in dicta, Brown & Williamson rejected the Third Circuit's holding in In re Grand Jury Investigation, 587 F.2d 589 (3d Cir. 1978), that the Clause merely prohibits evidentiary use of records of legislative acts but not their disclosure, concluding instead that the interest in protecting the functioning of the legislature may permit the Congress "to insist on the confidentiality of investigative files," Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 420 (D.C.Cir.1995). And again the criminal context distinguishes Brown & Williamson's dicta from this case. For example, in Brewster, a case involving the criminal prosecution of a Member, the Supreme Court described the violation of the Clause that occurred in United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966)—another criminal case—as arising from "the use of evidence" of a legislative act to support the indictment. Brewster, 408 U.S. at 510, 92 S.Ct. 2531 (emphasis added). According to Brewster, "a Member of Congress may be prosecuted under a criminal statute provided that the Government's case does not rely on legislative acts or the motivation for legislative acts." Id. at 512, 92 S.Ct. 2531. Thus, in the criminal context the Supreme Court has indicated that it is the Executive Branch's evidentiary use of legislative acts, rather than its exposure to that evidence, that violates the Clause.

[20] At trial Rep. Jefferson may assert Speech or Debate Clause immunity to bar the use of records he claims are privileged. Cf. Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1, 13-16 (D.C.Cir.2006) (affirming denial of Member's motion to dismiss on Speech or Debate Clause ground but noting that even "[w]hen the Clause does not preclude suit altogether," it "may preclude some relevant evidence") (en banc), cert. denied, Office of Sen. Mark Dayton v. Hanson, ___ U.S. ___, 127 S.Ct. 2018, 2020, 167 L.Ed.2d 898 (2007); Johnson, 383 U.S. at 185 ("With all references to [legislative material] eliminated [from the indictment], we think the Government should not be precluded from a new trial on this count, thus wholly purged of elements offensive to the Speech or Debate Clause."). At this stage, however, Rep. Jefferson is entitled only to copies of the records seized by the government and judicial review of any record he claims is privileged, as our July 28, 2006 order provides. See United States v. Rayburn House Office Bldg., Room 2113, No. 06-3105 (D.C.Cir. July 28, 2006). To the extent the majority suggests that-if a Member can show disruption of his legislative activities-the government may be required to return non-privileged material to remedy a violation of the Clause, Maj. Op. at 665-66, thereby potentially depriving the Executive Branch of records bearing on criminality, it is a suggestion I categorically reject.