A constitutional controversy is brewing in my home state of Tennessee.
The conundrum goes like this: Trump-backed candidate Morgan Ortagus is running to represent Tennessee’s 5th Congressional District in the U.S. House of Representatives. A former Bush appointee to the U.N. and Miss Florida Citrus, Ortagus only moved to Tennessee one year ago. The objections surrounding the Floridian’s candidacy have been so loud that last Thursday, the Tennessee General Assembly passed legislation enacting new residency requirements for congressional primary candidates. The Assembly’s law would require a congressional candidate to have lived in the state of Tennessee, and in the district he plans to represent, for a minimum of three years prior to his election, encouraging not just state but also local loyalty.
Hours later, three Ortagus supporters filed a lawsuit in Nashville’s federal court calling the bill—which still awaits Gov. Bill Lee’s signature, veto, or silent acceptance—unconstitutional.
“Plaintiffs allege the bill, not yet law, would ‘blatantly’ violate the Constitution, which outlines less stringent qualifications to qualify to serve in the U.S. House of Representatives. The legislation would likely disqualify their ‘preferred’ candidate, Morgan Ortagus, from running in the Republican primary,” reports the Tennessean.
The Wall Street Journal has already planted its flag, calling the law unconstitutional in an editorial last week. The Journal cites the same reasons as the Nashville lawsuit, arguing that the Assembly’s requirements would be more stringent than those outlined in Article I, Section 2 of the U.S. Constitution. I’m no expert in constitutional interpretation, but since the bill may soon be law, it is worth taking a closer look.
We can imagine a plethora of contextual reasons why America’s founders didn’t include state residency as a requirement for elected officials in the Constitution, such as the fact that they feared the prospect of a weak national government more than a behemoth one. Or, we can look to Federalist No. 52, and Madison’s brief explanation of the requirements that distinguish the lower from the upper chamber: congressional elections should be open to anyone of merit, without regard to age, wealth, or religion. All right, good. What about carpetbaggers?
Of local loyalties, Madison says the frequency of representatives’ elections would preserve the candidate’s common interest with the people, their “dependence and sympathy” on and for those who elected them. I won’t bore you with how that has turned out; you’re already living it. Regardless, it seems Madison was interested in preserving local loyalties, which other founders’ sentiments confirm. Except, we still have the problem of out-of-state opportunists trying their luck in districts where they can’t even name the three interstate highways running through them, not to mention a national electorate that is chronically ill-informed. What now?
There is another argument against the Assembly’s bill, which has received almost as much air—that the Tennessee General Assembly is engaging in political protectionism. You know, insiders in smoky backrooms keeping out the fresh, dissenting voices. This, if you’ll pardon my tone, is hogwash.
For one thing, political parties have set their own rules for candidate qualification for decades. These rules aren’t state law, but they are certainly more stringent than the Section 2 requirement that a candidate have seven years’ residency in the United States and be at least 25 years of age. They certainly work to keep out candidates that may otherwise have been qualified. If anything is protectionist, it is these rules, which work to enforce loyalty to a national two-party system, something the Constitution was supposed to help us avoid. By contrast, the Tennessee General Assembly law would require a minute measure of state and district loyalty, a commitment to the success of the region that a man would represent.
The Tennessee law sets a considerably lower threshold than it could have. By the same standard, I could run to represent the state of Michigan in the U.S. House, and after four years of residency there I can say with confidence it is not half as much time as one would need to govern a place well. In a nation as vast as ours, with states as diverse in character and concerns, it should not be controversial to set a threshold that favors the locals. (While we’re at it, we should make representatives spend more days a year in their districts than in Washington, so they can feel the effects of the laws they let pass.)
If the goal is fair representation, a residency requirement protects against unfair abuses by candidates who have garnered national recognition but know little about the district they’re campaigning in. How many absurdly ignorant laws we could avoid by requiring a candidate to live as many as five years in a state before taking office—or, heaven forbid, be born there—we may never know. Not to mention the absurdly ignorant candidates who, having given the locals sufficient time to assess their character, would never make it past the petition stage to get on the ballot.
Behind all of this is the question of loyalty, something that must be earned through proximity. Think about the fact that most candidates choose to live in the districts they represent, though there is currently no requirement to do so. It is a recognized tradition that you should belong to the community you intend to serve, one we haven’t codified likely because it is one candidates have generally heeded, or felt the burn for not heeding at the ballot box.
Much has changed since 1787, and as much as I like Florida, Florida’s problems are not Tennessee’s. Loyalty to either political party offers no comfort that a candidate will understand Tennesseans’ concerns and represent them faithfully on the national stage.
My home state is a lot of things, but you could never call it disloyal. And if wanting the representative for the 5th Congressional District to know who Nathan Bedford Forrest is constitutes “political protectionism,” then give me a named chair in the club cigar lounge.