Governor Newsom, Laphonza Butler, and the Constitution’s Plain Text

 

 

Since 1913, when the Seventeenth Amendment was ratified, there have been two ways to become a senator. A would-be senator could be “elected by the people” of his state, or, in the event of a senate vacancy, the vacancy can be temporarily filled by appointment by the state’s governor. (It is a temporary appointment because the remainder of the term can be filled by a special senate election, which would displace the governor’s temporary appointee.) The key point is that there are two ways to become a senator: election by the people, and appointment by the governor. 

This textual distinction appears across many constitutional provisions. For example, the Ineligibility Clause states: “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been [i]ncreased during such time.” [Article I, Section 6, Clause 2 (emphases added)]

Still not just anyone can hold the position of senator. Article I provides three basic qualifications.

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. [Article I, Section 3, Clause 3]

The age-related qualification and the citizenship-related qualification apply to all would-be senators: elected senators and appointed senators. But the inhabitancy-related qualification only applies to elected senators. If a senator is appointed by a state’s governor, there is no inhabitancy-related qualification.[1] Thus Governor Newsom is free to pick a non-Californian, including Laphonza Butler. This follows from the Constitution’s plain text.

It is not difficult to understand why the Framers of both the original Constitution of 1788 and the Seventeenth Amendment made this choice. The nation was geographically vast. It would take time to hold an election and, similarly, it would take time for a temporary appointee from one’s home state to physically move to the national capital. The capital itself, over time, would become the home to many former representatives, former senators, and other former senior government officials. It would make sense for states to be able to draw on these individuals as a temporary matter to fill vacancies—even where such appointees had no home-state residence. Where a candidate was filling a full six-year term, one wanted him to have home-state connections. But where a candidate, living in or near the national capital, was filling a temporary trust, it would make sense to loosen residence requirements so that a state could immediately have senate representation. For similar reasons, the strictures of the Ineligibility Clause applies only to elected representatives and senators, and not to temporary senators holding short appointments.

Seth Barrett Tillman, ‘Governor Newsom, Laphonza Butler, and the Constitution’s Plain Text,’ New Reform Club (Oct. 2, 2023, 3:54 PM), <https://reformclub.blogspot.com/2023/10/governor-newsom-laphonza-butler-and.html>; 

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[1] See Seth Barrett Tillman, Understanding Nativist Elements Relating to Immigration Policies and to the American Constitution’s Natural Born Citizen Clause, 32(2) Study on the American Constitution 1, 4 n.5 (Aug. 2021) (peer review) (“Under Article 1, senators were originally elected by the United States’ constituent state legislatures. Under United States Constitution Amendment 17 (1913), senators are now popularly elected. However, if a senate seat is vacant, a temporary senator may be chosen by a state governor to fill the senate vacancy. Id. In such circumstances, it is not clear that the senator must be an inhabitant of that state.”), <https://tinyurl.com/dhkxfzby>; Josh Blackman & Seth Barrett Tillman, Symposium: Biden’s First 100 Days, What Happens if the Biden Administration Prosecutes and Convicts Donald Trump of Violating 18 U.S.C. § 2383?, 2021 U. Ill. L. Rev. Online 190, 192 (Apr. 30, 2021) (“The Constitution of 1788 imposes three somewhat stricter qualifications on senators. First, senators must ‘have attained to the Age of thirty Years ....’ Second, they must be ‘nine Years a Citizen of the United States ....’ Third, ‘when elected,’ the Senator must ‘be an Inhabitant of that State in which he shall be chosen.’ The Constitution authorizes a governor to temporarily fill a senate vacancy by appointment. In these situations, it is not clear that the inhabitancy qualification applies, as temporary senators are not ‘elected.’”). See generally Brian Kalt, Can the Senate Refuse to Seat Blagojevich's Appointee?, Concurring Opinions (Dec. 30, 2008, 11:22 PM), http://tinyurl.com/q55uzo (comment 6) (Nexis).