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The distinction between elected and appointed offices is entrenched in the Constitution. This distinction arises in several contexts: the Foreign Emoluments Clause, Section 3, and now Senate Qualifications.

Article I, Section 3, lists three qualifications to serve in the Senate:

No person shall become a Senator unless (1) he or she has attained the age of thirty years, (2) has been a citizen of the United States for nine years, and (3) when Get electedHe must be a resident of the state for which he will be selected.

The first two conditions apply when a person is a “senator.” That is, when a person actually seeks to occupy this position. But the third condition applies at a very specific time: “when elected.” In modern times, that means Election Day. But in 1788, there were no Senate elections. Under the original design of the Constitution, senators were not directly elected by the people. Rather, they were chosen by state legislatures. The Constitution still uses “elect” language in Article I, Section 3. The Constitution also uses “elect” language to refer to senators in the ineligibility clause:

“No Senator or Representative shall, during the term in which he has Get electedHe is specific To any civil office under the authority of the United States, which shall be established, or the rewards of which shall be established [i]And it increased at this time.”

In fact, this provision is used both of them The language of “elected” and “appointed”.

Furthermore, under the original design of the Constitution, if a vacancy in the Senate arises while the state legislature is in recess, “the executive may make it provisional assignments until the next meeting of the Legislature, which shall then fill such vacancies.” Note the language: “appointments,” not “elections.”

The Seventeenth Amendment changed the way senators are chosen. Now, the senators will beGet elected By the people.” But the Seventeenth Amendment still allows a state’s executive branch to “make temporary assignments.”

In 2021, Seth Barrett Tillman and I discussed the governor’s powers to fill Senate vacancies. condition About the uprising:

“The Constitution allows the Governor to temporarily fill a vacancy in the Senate by appointment. In these cases, it is not clear whether the residency qualification applies, as temporary senators are not “elected.”“.'”

As often happens, Seth and I write about obscure textual issues that only become relevant later. And so it happened again.

Contributing blogger Steve Sacks describes the recent controversy from California:

According to his official website, California Governor Gavin Newsom made the announcement on October 1 specific LaFonza Butler to the Senate, to complete the term of the late Senator Dianne Feinstein. Butler appears to have been a resident of Maryland As of very recentlybut According to Newsom’s office She plans to re-register to vote in California Before being sworn in on Wednesday. . . .

Until recently, Butler was not a California resident. She’s lived there most of her life, apparently He still owns a house there. But she has since moved to Maryland, where she works Political donations And it worked for Political Committee.

Newsom’s office suggested it would be enough for Butler to re-register to vote in California before being sworn in on Wednesday

Steve suggests that residency requirements are related to both of them Senators elected by the people and appointed by the governor:

The phrase “when elected” is even broader, because it was adopted as part of the Constitution of 1788, when “the members of the Senate in each State shall be chosen by the legislature thereof” (Article I, § 3, Section 1), usually a legislative member One. home at once. So the word “elected” here means the entire process of formal selection, not just some majority votes by the general citizenry. . . .

The Seventeenth Amendment was adopted “in lieu of” the “selection by the legislature” requirement, as well as “a substantial portion of the second paragraph of the same section relating to the filling of vacancies.” But it left the qualification requirements in Section 3 intact. So the “when elected” clause remains good law, and its most natural reading would include any form of formal selection that makes a person a presumptive senator.

I disagree. The chosen one means the chosen one. And the appointed means the appointed. Both types of language (elected and appointed) were used in the Constitution of 1788, and in the Seventeenth Amendment.

Seth offers an explanation for why the Framers did not impose a residency requirement on temporary alternates in the Senate:

It is not difficult to understand why the framers of the original Constitution of 1788 and the Seventeenth Amendment made this choice. The nation was geographically vast. It will take some time for the elections to be held, and likewise, it will take some time for the temporary appointee to move from his home state to the national capital. The capital itself would, over time, become home to many former representatives, former senators, and other former high-ranking government officials. It would make sense for states to be able to rely on these individuals as a temporary matter to fill vacant positions — even when those appointees do not have residency in the home state. When a candidate was running a full six-year term, one of them wanted ties to the home state. But when a nominee is holding a temporary position, it makes sense to relax residency requirements so the state can gain Senate representation right away. For similar reasons, the disqualification clause restrictions apply only to elected members, not to temporary senators holding short-term appointments.

Again, a textual reading of constitutional qualifications may lead to results that some find unsatisfactory. Of course, such dependency begins with a specific starting point: qualifications must be strictly enforced. There is a different possible starting point: qualifications should not be strictly imposed, but rather the democratic process should prevail. (Hint, Allusion, Section 3, Section 3). Let’s not forget that the Senate swore in several members who were under 30 years old. Seth and I made this point in our speech to In Section 3:

History supports this understanding of Congress’ practices. William Claiborne of Tennessee, born in 1775, was elected to the House of Representatives and began his two-year service in the House in 1797. He was only 22 years old. The House of Representatives did not rule it out. Claiborne was re-elected in 1799, when he was not yet twenty-five years old. It was only some time during his second term that he finally reached the age of twenty-five.

There are many other examples. In 1806, Henry Clay of Kentucky was elected to the Senate by the state legislature. He took the oath and began service when he was twenty-nine years old. In 1816, the Senate swore in Armistead Mason of Virginia, who was elected by the state legislature to a term in the Senate to fill a vacancy. The unexpired term will extend for approximately one year. At the time of Mason’s election, he was twenty-eight years of age. His elected term ended in March 1817, and he was still several months shy of his thirtieth birthday when his term ended. In 1818, the Senate swore in John Henry Eaton of Tennessee. At the time, Eaton was only twenty-eight years old. According to the Senate Historical Office, “No one appears to have asked John Eaton how old he was.”

LaFonza Butler better hope other senators are scriptwriters like Tillman and me. Or maybe no one asks where you live.

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