]

ENLARGEMENT OF QUALIFICATIONS

Writing in The Federalist[127] with reference to the election of Members
of Congress, Hamilton expressed the opinion that "the qualifications of
persons who may * * * be chosen * * * are defined and fixed in the
Constitution and are unalterable by the legislature." The question
remained academic until the Civil War, when Congress passed a law
requiring its members to take an oath that they had never been disloyal
to the Federal Government. In subsequent contests over the seating of
men charged with disloyalty, the right of Congress to establish by law
other qualifications for its members than those contained in the
Constitution was sharply challenged. Nevertheless, both the House and
Senate, relying on this act, did refuse to seat several persons.[128] At
this time the principal argument against the statute was that all
persons were eligible for the office of Representative unless the
Constitution made them ineligible. In Burton _v._ United States,[129]
the argument was given a new twist. A law providing that a Senator or
Representative convicted of unlawfully receiving money for services
rendered before a government department should be "rendered forever
thereafter incapable of holding any office of honor, trust or profit
under the Government of the United States," was assailed as an
unconstitutional interference with the authority of each House to judge
the qualifications of, or to expel, one of its own members. The Court
construed the statute not to affect the offender's tenure as a Senator,
and left undecided the power of Congress to impose additional
qualifications (or disqualifications).[130] In exercising the power
granted by section 5 to judge the qualifications of its own members,
each House has asserted the power to inquire into the conduct of a
member-elect prior to his election. In 1900 the House of Representatives
refused to seat a person who practiced polygamy,[131] and in 1928 the
Senate voted to exclude a Senator-elect on the ground that his
acceptance of large campaign contributions from persons who were subject
to regulation by a State Administrative Commission of which he had been
Chairman were "contrary to sound public policy" and tainted his
credentials with fraud and corruption.[132]

INABILITY OF THE STATES TO ENLARGE

A State may not add to the qualifications prescribed by the Constitution
for members of the Senate and House of Representatives. Asserting