MICHAEL MONTAGANO, FEDERALIST PAPER NO. 52, AND THE TENTH AMENDMENT

Michael Montagano recently spoke at a 3rd District Democratic breakfast. He is running for the 3rd district congressional seat against Mark Souder; however, since he is a relative unknown, I am guessing that this campaign will be about getting his name out and recognized in the3rd district. He is young and will probably be around the political circles for quite some time.

One of the issues that he is facing is the question of his residency. Article I of the United States Constitution states:

“No person shall be a Representative who shall not have attained 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.”

Since Article I is silent on residency other than state residency, I decided to pull out my two-volume set of “The Debate on the Constitution” which is a compilation of “Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification.” My – how those individuals knew how to write with grace and elegance and flourish. I love to read the articles in the books, but I have to admit trying to read the material at midnight is a challenging task.

Several articles address the issue of the qualifications of the House of Representatives. The one that stands out the most; however, is “Publius,” The Federalist LII” by James Madison. Madison is considered the “Father of the Constitution”, and he was a prolific writer – responsible for writing over a third of the Federalist Papers. The Federalist LII addresses Madison’s interpretation of the residency qualifications, in which he writes:

“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. 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.”

 

James Madison, co-author of the Federalist Papers and 4th president of the United States.

 

Other than that lone reference to qualifications, Federalist 52 contains no additional thoughts on the residency qualifications. The bulk of Federalist 52 is spent on discussing the frequency of elections, which was of more concern. Article I may have been intentionally written with little guidance as to the finer aspects of residency; it provides the basics and leaves any specific, additional details to the states.

Since Article I mentions no residency requirement other than a state residency requirement, and the Federalist Paper No. 52 does not discuss the issue to any great degree, the next logical step would be to decide how states determine residency requirements for their representatives in the house. This is where the Tenth Amendment fits in.

During the debate over ratification, many citizens raised the issue of a lack of protection for individual rights. The supporters of the Constitution promised the citizens that if the Constitution indeed was ratified, then protection of rights would be a major topic at the First Congress, held from 1789-1791. The members of the First Congress numbered 66 in the House of Representatives and 29 in the Senate (due to a death and a couple of vacancies). The House distribution of representatives at that time was one for every 30,000. The First Congress consisted of the following distribution:

  • New Hampshire – 3
  • Massachusetts – 8
  • Rhode Island – 1
    • Providence Plantation- 1
  • Connecticut – 5
  • New York – 6
  • New Jersey – 4
  • Pensylvania -8
  • Delaware – 1
  • Maryland – 6
  • Virginia – 10
  • Georgia – 3

James Madison introduced his proposed list of amendments to the Constitution on June 8, 1789. After much debate and a reduction in the number of proposed amendments, the amendments were sent out to the states for ratification; Article V of the Constitution provides that procedure. The First Ten Amendments – also known as the Bill of Rights – were ratified by the required 3/4 vote of the states and went into effect on December 15, 1791.

The Tenth Amendment states:

“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.”

Since the Article I contains no specific reference to residency other than state residency and does not prohibit the imposition by the states of additional requirements, the states have the power to impose additional criteria in order for elected officials to hold office. The residency requirement is distinct from the voter registration requirement and has no impact on state residency.

Indiana has addressed this issue in two ways: through a constitutional provision, Article IV §7, and a statutory provision, Indiana Code 3-8-1-1. The Indiana Constitution states:

§ 7. Qualifications of members of assembly.

No person shall be a Senator or a Representative, who, at the time of his election, is not a citizen of the United States; nor any one who has not been for two years next preceding his election, an inhabitant of this State, and, for one year next preceding his election, an inhabitant of the district whence he may be chosen. Senators shall be at least twenty-five, and Representatives at least twenty-one years of age.

However, this section addresses the General Assembly qualifications and not qualifications for the United States Congress.

The second provision, IC 3-8-1-1 states:

b) A person is not qualified to run for:

(1) a state office;
(2) a legislative office;
(3) a local office; or
(4) a school board office;

unless the person is registered to vote in the election district the person seeks to represent not later than the deadline for filing the declaration or petition of candidacy or certificate of nomination.”

However, both the United States Constitution and the Indiana Constitution do not require registration to vote as a requirement, only status as an inhabitant. Obviously, an individual can be an inhabitant of a district without being a registered voter. Thus, I.C. 3-8-1-1, by adding the requirement of voter registration, not only modifies the requirements for the state General Assembly members but also sets an additional requirement for the members of the United States House of Representatives. I would argue that the reference to “legislative office” refers to both the General Assembly and the United States House of Representatives.

The U.S. Constitution was ratified in 1788 and set the standard for the original 13 colonies. The Founding Fathers and those attending the First Congress realized that no document could set out every right or every power or every exception. Thus the 10th Amendment provided a mechanism to enable incoming states as well as the already-existing colonies to modify provisions of the body of the Constitution (the first seven Articles) so long as the additional provisions did not conflict with the United States Constitution, which is considered the Supreme Law of the Land.

 

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About Charlotte A. Weybright

I own a home in the historical West Central Neighborhood of Fort Wayne, Indiana. I have four grown sons and nine grandchildren - four grandsons and five granddaughters. I love to work on my home, and I enjoy crafts of all types. But, most of all, I enjoy being involved in political and community issues.
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6 Responses to MICHAEL MONTAGANO, FEDERALIST PAPER NO. 52, AND THE TENTH AMENDMENT

  1. Jeff Pruitt says:

    Great post! I’m going to link to this at FWL and add my own comments…

  2. Thanks, Jeff. Robert Enders had a response to a short post I did over at FWOb. He indicates he thinks that the states cannot add qualifications and refers to term limits. The difference is that term limits exclude an indivudual from participating and voter registration does not. The goal of the Article I quaifications was to ensure that as many individuals as possible could participate in the new government (excluding women and minorities at that time, of course).

  3. Carol says:

    I really appreciate your passion. Very well researched. I did want to bring one important thing to your attention. Mr. Montagano does live in the district so there was never any “question” over his residency. Your paper will be useful, however, to candidates in the future who do not live in the district. I know his family well. Him and his wife live in their home in the 3rd district. He came back to serve the community that helped raise him and she is working remotely out of their home. I think he is an admirable guy and I am excited about him as a candidate. Also, I can also assure you that he is not running just to get his name out their. He is passionate and energetic and anyone that knows him, definately knows that he is committed to this. I know it was probably an honest mistake but I am sure we are in agreeance that as democrats we should probably not spread misinformation about democratic candidates. I did enjoy your paper though and love history myself. Just wanted to clarify.

  4. Carol:

    I want to clarify that I wasn’t the one who raised the issue about residency.
    The issue was brought out in a post at Fort Wayne Observed which is hosted by Mitch
    Harper, a Republican candidate for the 4th district city council seat in Fort Wayne.
    My article was in response to comments to that post which were questioning Michael’s
    residency. The issue had already been raised by others in the blogging community.

    I don’t believe I made a mistake in writing my post as I was attempting to refute
    the allegations on Fort Wayne Observed about Michael’s residency. It was not
    my intention to spread anything false (and I didn’t spread anything false)- I intended to analyze the issue of congressional residency and to support his candidacy.

    My post contained no misinformation. I am not sure why you chose to use the words, “it was probably an honest mistake but I am sure we are in agreeance that as democrats we should probably not spread misinformation about democratic candidates.” I did not write any misinformation. Again, my goal was to address an issue that had already been raised.

    If you check out the Fort Wayne Observed post and its comments, you will
    better understand why I wrote the article.

    Thanks for the comments.

    Charlotte

  5. Megan says:

    I also know Michael, his wife Bethany and his family personally and am behind him 100%. However, Carol, they are not actually living in their new home yet, but the purchase has been made. (Good enough for me!) 🙂 They should be living in the 3rd full-time in the near future. They are still back and forth between Indianapolis and DC. (As his wife is employed by the Smithsonian.)

  6. Jeff Pruitt says:

    Megan,

    Perhaps you can answer a lingering question of mine:

    Are they somehow related to or acquaintances of Rahm Emanuel?

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