Ineligibility Clause

Anti-corruption purpose

Justice Scalia articulated the Framing rationale: "The Framers' experience with post revolutionary self-government had taught them that combining the power to create offices with the power to appoint officers was a recipe for legislative corruption. The foremost danger was that legislators would create offices with the expectancy of occupying them themselves." Freytag v. Comm'r, 501 U.S. 868, 904 (1991) (Scalia, J., dissenting).

The Clause "does not go to the extent of [its anti-corruption] principle" — it still permits a Member to accept an office created during the Member's term if the Member waits until the term expires before accepting appointment. Story observed this leaves room for influence when a term is short or nearing its end: "The actual provision, however, does not go to the extent of the principle; for his appointment is restricted only 'during the time, for which he was elected;' thus leaving in full force every influence upon his mind, if the period of his election is short, or the duration of it is approaching its natural termination."

Story's own defense of the clause rests less on the text than on a general theory of what constitutional drafting can and cannot accomplish. No disqualification rule, in his view, can substitute for the two things a free government must ultimately rely on: "The great securities for society — those, on which it must for ever rest in a free government — are responsibility to the people through elections, and personal character, and purity of principle. Where these are wanting, there never can be any solid confidence, or any deep sense of duty." He goes further than defending the clause as drafted — he doubts a broader disqualification would even work, since executive influence could simply move sideways: "even a general disqualification might be evaded by suffering the like patronage silently to fall into the hands of a confidential friend, or a favorite child or relative." — Joseph Story, Commentaries on the Constitution §§ 864-865 (1833)

Framing history

Edmond Randolph introduced the provision as part of the Virginia Plan. The original draft would have barred Members from any state or federal office during their term and for a year after. On June 22, 1787, Mason defended the broad bar in the starkest terms available in the Convention record: "I consider this clause as the corner-stone on which our liberties depend--and if we strike it out we are erecting a fabric for our destruction." Wilson answered that disqualification punished merit: "Shall talents, which entitle a man to public reward, operate as a punishment?"

On June 23, Madison moved a narrower substitute — his "middle ground" — to render Members "ineligible during their term of service, & for one year after--to such offices only as should be established, or the emoluments thereof, augmented by the Legislature of the U. States during the time of their being members." The Convention rejected Madison's own motion that day (2 ayes–8 noes), then on September 3 adopted King's amendment narrowing the trigger to offices "created" and Williamson's addition covering offices whose "emoluments whereof shall have been increased" during the Member's term — arriving, after repeated near-even votes, at the final formula: "The members of each House shall be ineligible to any Civil office under the authority of the U. States, created, or the emoluments whereof shall have been increased during the time for which they shall respectively be elected--" — Records of the Federal Convention (Madison, 22, 23 June; 3 Sept. 1787)

The Convention's own Journal — reprinted by Elliot, distinct from Madison's personal notes above — records the 3 September final vote as a narrow one, not the near-unanimous adoption Mason's "corner-stone" rhetoric might suggest. The question was put twice — first 5 ayes to 4 nays (Georgia divided), then retaken 5 ayes to 3 nays (Georgia still divided) — with only the second count recorded as passing, before the house adopted the amended report as a whole:

"The members of each house shall be ineligible to any civil office under the authority of the United States, created, or the emoluments whereof shall have been increased, during the time for which they shall respectively be elected; and no person holding any office under the United States shall be a member of either house during his continuance in office." — Journal of the Federal Convention, 3 Sept. 1787, quoted in Elliot's Debates vol. 1

This is the Journal's own record of the clause Madison's Notes date to the same day; the two source's vote counts are otherwise unremarked elsewhere on this page, and the closeness of the count (a bare one- and two-vote margin, with Georgia divided both times) is new context for how contested King's and Williamson's narrowing amendments actually were on final passage, not merely in the run-up debate already documented above.

The 3 September floor debate in full: Pinckney's second defeat, and the speeches behind the narrow final vote

"Framing history" (above) already states the 3 September outcome — King's amendment narrowing the trigger to offices "created," Williamson's addition covering offices with increased "emoluments," and the Journal's own narrow 5-4-then-5-3 roll call. Madison's own diary, independently ingested from Elliot's Debates vol. 5, preserves the floor debate itself for the first time on this page, and it shows the final formula survived a third attempt at Pinckney's bare-incompatibility substitute before either amendment came up.

Pinckney moved postponing the Committee of Eleven's Ineligibility/Incompatibility report to substitute his own bare-incompatibility rule — members merely incapable of holding any salaried federal office, with acceptance vacating the seat — arguing the stronger bar resembled "the policy of the Romans, in making the temple of Virtue the road to the temple of Fame." The motion failed, 2-8 — Pinckney's second defeat on this same substitute, distinct from and three weeks after his first, 5-5-1 loss on 14 August (already on this page, above).

King then moved inserting "created" before "during" in the committee's report, to exclude members of the first Congress from ineligibility to offices that would, as a practical matter, all be newly created that same year; Williamson seconded, doubting members should be barred from vacancies "happening during the term of their election." Sherman wanted the bar extended further, to salary increases as well as new creations, warning of the evasion by which "an existing officer might be translated to an office created, and a member of the legislature be then put into the office vacated." Gouverneur Morris argued member eligibility would actually lessen executive influence, since a President barred from appointing members would instead appoint "their relations and friends" while keeping the members' own votes and service "for his purpose, in the legislature"; Gerry feared the opposite — that an eligible member would face "batteries" from ambitious colleagues seeking to drive him from office and open the vacancy. Gorham favored the amendment, since without it "we go farther than has been done in any of the states, or, indeed, any other country," and state experience showed eligibility was itself "among the inducements for fit men to enter into the legislative service." Randolph was "inflexibly fixed" against inviting legislators into office by the prospect of appointment; Baldwin thought the state analogy inapt, since state legislatures were too numerous for an ineligibility rule to leave "proper men for offices," a problem the far smaller general government's legislature would not share. Col. Mason answered Randolph's and Baldwin's shared premise directly: "[i]nstead of excluding merit, the ineligibility will keep out corruption, by excluding office-hunters." Wilson sided with Morris's influence argument while adding a distinct point — legal disqualification would be "odious to those who did not wish for office," stigmatizing members with "so degrading a distinction" regardless of their own ambitions. Pinckney closed by warning the ablest men, including future judges serving for life, would sit disqualified from office at the precise moment the new government most needed its first offices filled by proven talent.

King's motion failed on an even division, 5-5. Williamson then moved the version that actually carried — inserting "created, or the emoluments whereof shall have been increased" before "during" — seconded by King; it passed, 5-4-1 (Georgia divided). The clause rendering a seat and a federal office incompatible was agreed to nem. con. The report, as amended, reads exactly as the Journal's 3 September text already on this page states.

key-insight

This session shows Pinckney's bare-incompatibility substitute losing a third distinct floor vote (14 August, 5-5-1; 3 September's postponement motion, 2-8) before the Convention even reached King's and Williamson's narrowing amendments — the stronger Ineligibility Clause survived three separate challenges from the same delegate, not two as this page's existing "14 August" key-insight states. The 5-5 tie on King's "created"-only amendment is also new context: had one vote shifted, the enacted clause would bar ineligibility only for newly created offices, with no separate trigger for salary increases — Williamson's broader formula, which the Constitution actually carries, prevailed by the narrowest possible margin at the amendment stage, before the Journal's already-documented 5-4/5-3 final-passage roll call.

An earlier, failed attempt at the same question, 12 June 1787 — eleven days before the vote below

The "23 June debate in full" section below states that Pinckney and Sherman's motion striking state-office ineligibility "carried 8-3" on 23 June, treating that as the question's first floor test. Madison's own Notes on the Convention show the identical question — whether to strike the ineligibility bar as it applied to state offices — had already reached the floor once, eleven days earlier, and failed:

"On a question for striking out the 'ineligibility of members of the Nat'l Legis: to State offices,' Massachusetts, divided. Connecticut, ay. New York, ay. New Jersey, no. Pennsylvania, no. Delaware, no. Maryland, divided. Virginia, no. North Carolina, ay. South Carolina, ay. Georgia, no." — Notes on the Convention, 12 June 1787

Counting decided states, the motion to strike drew four ayes against five noes, with two states divided — short of a majority. The Committee then voted on the surviving clause as amended, and it passed by a near-unanimous margin the same session:

"On the question for agreeing to the clause as amended: Massachusetts, ay. Connecticut, no. New York, ay. New Jersey, ay. Pennsylvania, ay. Delaware, ay. Maryland, ay. Virginia, ay. North Carolina, ay. South Carolina, ay. Georgia, ay." — Notes on the Convention, 12 June 1787

key-insight

The 12 June record moves the ineligibility-to-state-office question's first floor test back to 12 June, eleven days before the 23 June vote this page's "23 June debate in full" section already documents in depth. The two votes reach opposite outcomes on the same underlying question — the state-office bar survives intact on 12 June (the strike-motion fails, 4-5-2) but falls eleven days later (Pinckney and Sherman's near-identical motion carries 8-3, per the section below). No speaker is named for either 12 June vote, so the reasoning behind the flip is not recovered here; the 23 June session's fuller debate (below) is the first point in the record that gives argument for either side of this exact question.

The 23 June debate in full: a broader speaker roster, and a two-part division vote this page did not previously hold

The "Framing history" section above states that "Madison moved a narrower substitute" on 23 June and that it was "rejected that day (2 ayes-8 noes)." Madison's own Notes on the Convention (a fuller telling of the same session than this page's existing "Records of the Federal Convention" citation) show the vote sat inside a longer sequence the page did not previously document, with a wider set of speakers than Mason and Wilson alone.

The same 23 June session first took up, and carried 8-3, a separate motion by Gen. Pinckney (seconded by Sherman) striking the ineligibility bar as applied to offices "established by a particular state" — narrowing the clause to purely federal offices before Madison's own substitute was even reached. Madison then renewed his "created, or the emolument augmented" motion, and the debate drew a roster this page has not previously quoted in full:

"The proper cure, he said, for corruption in the legislature, was to take from it the power of appointing to offices. One branch of corruption would, indeed, remain,—that of creating unnecessary offices, or granting unnecessary salaries, and for that the amendment would be a proper remedy." — James Wilson, Notes on the Convention, 23 June 1787

Rutledge wanted the legislature "pure as possible" by barring self-appointment outright, a stronger position than Madison's own carve-out. Mason called Madison's motion "but a partial remedy," recalling the Virginia legislature's own "shameful partiality... to its own members," and answered the genius-needs-encouragement argument on its own terms: "that virtue should be encouraged by such a species of venality, was an idea that at least had the merit of being new." King called disqualification "chimerical," since a Member barred from office for himself could still intrigue "to gain them for his son, his brother, or any other object of his partiality." Sherman warned the motion "did not go far enough" — an officeholder could be translated to a newly created post, opening a vacancy for the disqualified Member to fill instead. Gerry agreed with Sherman and added a distinct evasion: Members could still intrigue to displace sitting officers in order to manufacture vacancies for themselves. Jenifer closed with Maryland's own five-year Senate ineligibility rule as evidence the stronger version could work in practice, since it had "gained them the greatest confidence of the people." Madison's motion then failed, the same 2-8-1 vote this page already documents.

What survived instead: a two-part division, and a second, smaller defeat this page did not previously hold. Sherman's motion to insert "and incapable of holding" after "ineligible to" passed without opposition, and the words "established" and "under the national government" were struck from the resolution. Spaight then called for a division of the question on the surviving broad ineligibility text — not Madison's rejected substitute, but the Virginia Plan's original language as narrowed by Pinckney's and Sherman's amendments above. The first part, barring appointment during a Member's term, passed comfortably, 8-2-1. The second part — extending the bar one additional year after the term — failed, 4-6-1:

"Col. MASON thought this esential to guard against evasions by resignations, and stipulations for office to be fulfilled at the expiration of the legislative term." — George Mason, Notes on the Convention, 23 June 1787

"Mr. HAMILTON. Evasions could not be prevented,—as by proxies, by friends holding for a year, and then opening the way, &c." — Alexander Hamilton, Notes on the Convention, 23 June 1787

key-insight

The clause that actually left the floor on 23 June 1787 barred ineligibility only during the Member's term, with no one-year tail — the opposite of the broader "and for one year after" language Randolph's original Virginia Plan draft had proposed (see "Framing history," above). The one-year extension was not restored until later floor action this wiki does not yet hold in full; the enacted text's final form (no "one year after" language survives in Art. I §6 cl. 2 as ratified) traces more directly to this 23 June defeat than to Madison's own rejected substitute, which is the version this page's "Framing history" section has emphasized until now.

Robert Yates's independent account of the 22-23 June 1787 debate

Madison's Notes (above) preserve Mason's "corner-stone" line and Wilson's "shall talents... operate as a punishment?" from this same Committee-of-the-Whole debate. Robert Yates's independent Notes of the Secret Debates — a second delegate's manuscript record, distinct from both Madison's Notes and the Convention's own Journal — corroborates both lines and supplies several further speakers and arguments Madison's account omits. Butler drew an analogy to George II's corruption of Parliament through pensions and lordships:

"What was the conduct of George II., to support the Pragmatic Sanction? To some of the opposers he gave pensions, others offices, and some, to put them out of the House of Commons, he made lords." — Pierce Butler, quoted by Robert Yates, Notes of the Secret Debates, 23 June 1787, Elliot's Debates vol. 1

Mason's own image for the corruption a weak rule invites, distinct from the "corner-stone" language above:

"If not checked, we shall have ambassadors to every petty state in Europe; the little republic of St. Marino not excepted." — George Mason, quoted by Robert Yates, Notes of the Secret Debates, 22 June 1787, Elliot's Debates vol. 1

Gerry's warning about the Convention's own civic moment:

"At the beginning of the war, we possessed more than Roman virtue. It appears to me it is now the reverse. We have more land and stock-jobbers than any place on earth." — Elbridge Gerry, quoted by Robert Yates, Notes of the Secret Debates, 23 June 1787, Elliot's Debates vol. 1

And Hamilton's own anti-corruption rationale, an aphoristic counterpart to Scalia's Freytag dissent below:

"A state government will ever be the rival power of the general government. It is, therefore, highly improper that the state legislatures should be the paymasters of the members of the national government." — Alexander Hamilton, quoted by Robert Yates, Notes of the Secret Debates, 22 June 1787, Elliot's Debates vol. 1

Yates records the Committee's vote on the clause as amended at "8 ayes, 2 noes, 1 state divided" (23 June) — a comfortable Committee-of-the-Whole majority, distinct from and earlier than the narrow 5-4-then-5-3 final-passage roll call the Journal records on 3 September (above).

Yates's fuller account, continued: Gorham's and Hamilton's 22 June speeches, and Madison's own case for eligibility on 23 June

The Yates material above corroborates Madison's Notes for the 22-23 June debate but does not exhaust it. Two further footnoted excerpts from Madison's own manuscript — themselves reproducing Yates's Secret Proceedings — preserve two speeches from the 22 June session no other source on this page holds, and Madison's own speech from 23 June, recorded independently by a second delegate rather than by Madison himself.

Gorham, 22 June: institutional stability over disqualification. Answering the same "corner-stone" argument Mason had just made (already quoted above), Nathaniel Gorham argued English corruption was a symptom of the borough system specifically, not of officeholding by legislators as such, and that frequent elections — not a bar on offices — was the real check available to a free government:

"The corruption of the English government cannot be applied to America. This evil exists there in the venality of their boroughs; but even this corruption has its advantage, as it gives stability to their government. We do not know what the effect would be if members of parliament were excluded from offices. The great bulwark of our liberty is the frequency of elections, and the great danger is the septennial parliaments." — Nathaniel Gorham, quoted by Robert Yates, Notes of the Secret Debates, 22 June 1787, Elliot's Debates vol. 1

Hamilton, 22 June: a fuller statement of the corruption theory this page's "rival power" quote only summarizes. The short Hamilton line already quoted above ("A state government will ever be the rival power of the general government...") is drawn from the same 22 June sitting as a much longer Hamilton speech on human motivation and government design, not previously quoted on this page:

"In all general questions which become the subjects of discussion, there are always some truths mixed with falsehoods. I confess there is danger where men are capable of holding two offices. Take mankind in general, they are vicious--their passions may be operated upon... Take mankind as they are, and what are they governed by? Their passions. There may be in every government a few choice spirits, who may act from more worthy motives. One great error is that we suppose mankind more honest than they are. Our prevailing passions are ambition and interest; and it will ever be the duty of a wise government to avail itself of those passions, in order to make them subservient to the public good--for these ever induce us to action... I am therefore against all exclusions and refinements, except only in this case; that when a member takes his seat, he should vacate every other office. It is difficult to put any exclusive regulation into effect. We must in some degree submit to the inconvenience." — Alexander Hamilton, quoted by Robert Yates, Notes of the Secret Debates, 22 June 1787, Elliot's Debates vol. 1

Madison's own case for eligibility, 23 June — recorded by Yates rather than by Madison himself. Madison's own manuscript for 23 June (above, "The 23 June debate in full") records his motion and its 2-8-1 defeat but not his own floor speech defending it. Yates supplies it, alongside a fuller version of Mason's reply than Madison's manuscript preserves:

"I differ from my colleague in his proposed amendment. Let me state the practice in the state where we came from. There, all officers are appointed by the legislature. Need I add, that many of their appointments are most shameful. Nor will the check proposed by this amendment be sufficient... I will add, that such a government ought to be refused by the people--and it will be refused." — George Mason, quoted by Robert Yates, Notes of the Secret Debates, 23 June 1787, Elliot's Debates vol. 1

"My wish is that the national legislature be as uncorrupt as possible; but it is not always done from the base motives of venality. Friendship, and a knowledge of the abilities of those with whom they associate, may produce it. If you bar the door against such attachments, you deprive the government of its greatest strength and support... If we expect to call forth useful characters, we must hold out allurements; nor can any great inconveniency arise from such inducements. The legislative body must be the road to public honor; and the advantage will be greater to adopt my motion, than any possible inconvenience." — James Madison, quoted by Robert Yates, Notes of the Secret Debates, 23 June 1787, Elliot's Debates vol. 1

key-insight

Madison's own Notes never record his own speeches at length — a structural blind spot in a diary kept by a participant. This Yates-recorded speech is one of the few places in this wiki where Madison's own case for a position he lost is preserved in anything like his own words, rather than summarized third-hand as "Madison had been led to this motion as a middle ground" (already quoted above from Madison's manuscript). Gorham's and Hamilton's fuller speeches likewise show the 22 June debate drew a wider and more theoretically ambitious set of arguments — from institutional stability to a general theory of political motivation — than the single-sentence attributions this page previously carried for either speaker on this question.

Luther Martin: the rejected state-officeholding bar, and the "flies" evasion argument

Luther Martin's Genuine Information (January 1788) reports that the Convention considered, and rejected "by a considerable majority," a broader bar than the enacted clause — one that would also have barred Members from holding state office during their term — while preserving the narrower federal bar:

"It was said — and in my opinion justly — that no good reason could be assigned why a senator or representative should be incapacitated to hold an office in his own government, since it can only bind him more closely to his state... we sacredly endeavored to preserve all that part of the resolution which prevented them from being eligible to offices under the United States, as we considered it essentially necessary to preserve the integrity, independence, and dignity of the legislature, and to secure its members from corruption." — Luther Martin, address to the Maryland House of Delegates, quoted in Elliot's Debates vol. 1

Martin — writing as an opponent of the ratified system — anticipates the same evasion Story's Commentaries above concede the clause leaves open, in a cruder but more concrete image:

"they may easily evade it by creating new offices, to which may be appointed the persons who fill the offices before created... it would be only driving away the flies that were filled, to make room for those that were hungry." — Luther Martin, address to the Maryland House of Delegates, quoted in Elliot's Debates vol. 1

key-insight

Martin and Story reach the same practical conclusion — the clause's textual limits ("created," "emoluments... increased," "during the time for which he was elected") leave real room for evasion — from opposite starting points: Story treats this as an acceptable cost of a workable rule, Martin as proof the safeguard was hollow from the start.

The Senate's own ineligibility vote, 26 June 1787: state offices carved out

The sections above document the 22-23 June Committee-of-the-Whole debate that produced the general ineligibility rule, and the 3 September final vote. Three days after the 22-23 June debate, taking up the fourth resolution (the Senate) specifically, the Convention revisited ineligibility once more — this time splitting federal-office ineligibility from state-office ineligibility as two separate questions, a distinction the 22-23 June debate did not draw.

Butler's motion to strike state-office ineligibility. Mr. Butler moved to strike senators' ineligibility to state offices, a question distinct from the federal-office bar already settled 22-23 June. Gen. Pinckney supported it on the same state-agency theory Ellsworth pressed the same day on the Compensation Clause (see Compensation Clause): if the states appoint and effectively pay their senators, the states ought to be free to call them into state office as well, and barring it "would also discourage the ablest men from going into the Senate." Wilson answered that allowing it "would create an additional dependence" on the states — "the longer the time... allotted to the officer, the more complete will be the dependence, if it exists at all."

Williamson's resolution splits the question in two. Williamson moved a resolution "so penned as to admit of the two following questions,—first, whether the members of the Senate should be ineligible to, and incapable of holding, offices under the United States; secondly... under the particular states." The house agreed to take up Williamson's two-part framing, 8-3.

The vote: unanimous for federal offices, defeated for state offices. On Gerry and Madison's motion, "and for one year thereafter" was added to the federal-office question, 7-4. As amended — ineligible and incapable of holding federal office during the term and for one year after — the first question passed unanimously. The second question, extending the identical bar to state offices, then failed decisively, 3-8 (Massachusetts, Pennsylvania, Virginia for; Connecticut, New York, New Jersey, Delaware, Maryland, North Carolina, South Carolina, Georgia against).

key-insight

The 22-23 June debate above (Framing history, and "The 23 June debate in full") settled ineligibility to federal offices generally, with Pinckney's and Sherman's amendment already narrowing the bar away from state offices earlier that same week. This 26 June vote confirms that narrowing was not a drafting oversight later corrected — when the question was put to the Senate specifically and split cleanly in two, the Convention affirmed federal-office ineligibility unanimously and rejected state-office ineligibility by a wide margin, 3-8. The enacted Art. I §6 cl. 2 text ("any civil Office under the Authority of the United States") reflects a considered, twice-confirmed choice to leave members free to hold state office, not merely the residue of Pinckney's and Sherman's earlier, narrower amendment.

George Mason before the Virginia convention: "no restraint at all"

George Mason's Virginia-convention speech (11 June 1788) is the wiki's first ratification-era floor source to read the full text of Art. I §6 cl. 2 — both the Ineligibility Clause and the Incompatibility Clause together — into a convention's record, and to argue at length that the combined restraint accomplishes nothing once the government is organized. Mason introduced the clause as a promise the text does not keep:

"Give me leave, on this occasion, to recur to that clause of the Constitution which speaks of restraint, and has the appearance of restraining from corruption, &c., but which, when examined, will be found to be no restraint at all. The clause runs thus: '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 increased, during such time; and no person holding any office under the United States shall be a member of either house during his continuance in office.' This appears to me to be no restraint at all." — George Mason, Virginia Convention, 11 June 1788

Mason's objection tracks the same textual gap Story's Commentaries would later concede (above) — that the bar reaches only offices "created" or given increased "emoluments" during the sitting Member's term — but presses it as a live prediction of how the new government would actually operate, once organized, rather than a retrospective doctrinal concession:

"Thus, after the government is set in motion, the restraint will be gone. They may appoint what number of officers they please. They may send ambassadors to every part of Europe. Here is, sir, I think, as wide a door for corruption as in any government in Europe. There is the same inducement for corruption, there is the same room for it, in this government, which they have in the British government." — George Mason, Virginia Convention, 11 June 1788

key-insight

Mason's floor reading and Luther Martin's pamphlet objection (above, the "flies" evasion argument) reach the same practical conclusion — the clause's textual limits leave real room for evasion — independently and from two different Convention delegates who both declined to sign. Mason's version is aimed at a ratifying convention that could still reject the Constitution over it; Martin's is aimed at a state legislature after the fact. Neither cites the other.

The 14 August floor fight: Pinckney's first attempt at a bare incompatibility rule, and the army-navy exception

The sections above document the 22-26 June Committee-of-the-Whole debate and the 3 September final vote. Between those two dates, on 14 August, the Convention took up the Committee of Detail's own version of the rule (Art. 6 sect. 9) and heard Pinckney try — three weeks before his better-known 3 September motion (already quoted on Incompatibility Clause) — essentially the same substitute, this time as a motion to postpone the ineligibility text rather than to replace it outright:

"The members of each House shall be incapable of holding any office under the United States, for which they, or any others for their benefit, receive any salary, fees, or emoluments of any kind; and the acceptance of such office shall vacate their seats respectively." — Charles Pinckney's substitute motion, Notes on the Convention, 14 Aug. 1787

Pinckney argued the existing bar was "degrading" to Members and would keep the Senate from becoming "a school of public ministers, a nursery of statesmen." Col. Mason answered with open irony rather than his usual direct argument, proposing to strike the whole section as the surest way to encourage "that exotic corruption which might not otherwise thrive so well in the American soil" and to invite into the legislature "those generous and benevolent characters who will do justice to each other's merit, by carving out offices and rewards for it." Mercer pressed the sweeping structural claim that elective government becomes aristocracy on its own, regardless of any disqualification text, and itemized the Senate's specific design features — two-member state delegations, six-year terms, no recall, an eight-state quorum against the nine-state requirement for major questions — as evidence it would in practice be run by "a junto." Gerry read a since-repealed Massachusetts legislative instruction against officeholding into the record and answered Pinckney directly: "He could not think... that the disqualification was degrading. Confidence is the road to tyranny." Gouverneur Morris opposed exclusion generally but drew a specific military exception, warning that barring army and navy officers from civil office would "form a band having a different interest from, and opposed to, the civil power" — soldiers primed to "despise and reproach those 'talking lords who dare not face the foe.'" Wilson, pressed by his own account of what he would owe his constituents if he voted his own prejudices rather than his judgment, asked rhetorically: "Did you suppose the people of Pennsylvania had not good sense enough to receive a good government?" Ellsworth answered Wilson's "discouragement of merit" objection by noting ambitious men would still serve their full term "for the sake of qualifying themselves for other offices" once it ended.

The question on postponing the existing text to take up Pinckney's substitute failed, 5-5-1 (Georgia divided) — Pinckney's bare-incompatibility idea's first defeat, three weeks before its second. Gouverneur Morris then moved the one exception the debate had actually produced consensus around, directly into the surviving text: "except offices in the army or navy; but, in that case, their offices shall be vacated." Randolph — who states elsewhere on this page he had been "uniformly opposed" to weakening the clause — agreed to Morris's exception specifically, on the narrow ground of wartime necessity: "no arguments had made any impression on him but those which related to the case of war, and a coëxisting incapacity of the fittest commanders to be employed." Butler and Pinckney then moved a general postponement of the whole section pending the Senate's eventual powers, agreed nem. con. — leaving both Pinckney's substitute and Morris's army-navy exception unresolved for the moment, though the exception's substance would not resurface in the clause the Convention ultimately adopted on 3 September (above), which contains no military carve-out at all.

key-insight

Pinckney tried his bare-incompatibility substitute twice, three weeks apart, and lost both times — 5-5-1 on 14 August (this section) and 2-8 on 3 September (already quoted on Incompatibility Clause). The stronger Ineligibility Clause the Convention actually kept survived two separate floor challenges from the same delegate, not one. Gouverneur Morris's army-navy exception, though it drew Randolph's rare agreement on 14 August, did not survive into the clause's final language — the enacted Art. I §6 cl. 2 draws no distinction between civil and military federal office for ineligibility purposes, though the companion Incompatibility Clause's broader "any Office" language does reach military commissions (see that page's Van Ness discussion).

Scope and application

The bar applies only:

• to "civil" federal offices (military commissions raise separate questions under the Incompatibility Clause);
• during "the Time for which [the Member] was elected" — resignation to accept the other office does not cure the violation, because the term continues;
• to offices that were created or had their emoluments increased during the Member's current term.

A former Member may accept a federal judgeship created during the Member's term, so long as appointment comes after the term expires.

Justiciability barrier

Courts have almost uniformly dismissed Ineligibility Clause challenges on standing grounds. In Ex parte Levitt, 302 U.S. 633 (1937), the Court dismissed a challenge to Justice Hugo Black's appointment (Congress had created a new retirement pension option during Black's Senate term) because the movant had only a "general interest common to all members of the public." See Ex parte Levitt. Similarly, Rodearmel v. Clinton, 666 F. Supp. 2d 123 (D.D.C. 2009), dismissed a challenge to Hillary Clinton's appointment as Secretary of State despite a salary increase during her Senate term.

The result: OLC opinions, not courts, do the substantive work of Ineligibility Clause compliance. OLC has held:

• A statutory provision merely creating the possibility of a future salary increase (with no increase yet occurring) does not trigger the bar.
• The bar does not apply when the President sets salary after appointment.
• The bar does not apply when the office is created after the nomination, even if before the term expires.

The Saxbe fix

When a Member is to be appointed to an office whose salary was raised during the Member's term, Congress may roll back the salary to its pre-increase level. This "Saxbe fix" — named for Nixon's 1973 appointment of Senator William Saxbe as Attorney General — is the standard workaround. OLC's most recent opinions conclude the fix complies with the Clause; some scholars and dissenting OLC opinions have reached the opposite view.

The first use was in 1903, when Congress reduced the Secretary of State's compensation to allow appointment of Senator Philander Knox.