The Strange Constitutional Loophole Exposed by Dianne Feinstein’s Replacement

On Sunday, California Gov. Gavin Newsom announced his appointment of Laphonza Butler to the Senate seat formerly held by Dianne Feinstein, who passed away on Friday at 90. Butler is set to be sworn in on Tuesday by Vice President Kamala Harris, whom Butler advised during her 2020 presidential bid. Before her swearing-in, however, senators will have an opportunity to object—and there is a possibility that Republicans will do so on the grounds that she is a resident of Maryland, not California, and thus constitutionally disqualified from representing the Golden State. Butler’s defenders have noted that she intends to re-register as a California voter, and that she owns property in the state, establishing her residency. Is that enough?

The short answer is: Nobody knows for certain, and the Constitution does not say, at least not in remotely clear terms. The Senate is the final arbiter of this question, and given Democrats’ (slim) majority, it is likely to vote down any objections. The profound legal ambiguity at the heart of this brewing dispute serves as a timely reminder that our antiquated, unamendable Constitution simply cannot answer many basic questions about the government it created.

As originally ratified in 1788, the Constitution directed state legislatures to elect U.S. senators, and imposed three qualifications to serve. First, senators must be no younger than 30 years old. Second, they must have been a U.S. citizen for nine years or more. Third, they must be “an inhabitant” of the state they represent. This last requirement expressly applies to the candidate “when elected,” while the first two don’t. So a Senate candidate must meet the inhabitancy requirement at the time of their election, but need not meet the age or citizenship requirements until they are sworn in. That’s why Joe Biden could be elected to the Senate at age 29: He turned 30 before he was sworn in.

The snag with Butler is, of course, the “inhabitant” requirement. And understanding it requires some history. As Michael Thorning has pointed out, the Framers deliberately chose the word “inhabitant” instead of “resident” to avoid strict home-state residency requirements for senators. Residency means a person’s primary home and location, the place where they live on a long-term basis. Inhabitance, by contrast, requires some physical presence in a state, but it may be intermittent, interrupted by long absences. As James Madison put it, the term “inhabitant” encompasses people who may leave a state “for a considerable time on public or private business.”

It is unclear whether Butler satisfies even this more limited inhabitance requirement. She currently lives in Silver Spring, Maryland, where she moved to work at Emily’s List in 2021. Newsom’s office says she owns a house in California and that she intends to re-register to vote there before her swearing-in—which suggests she has voted in Maryland for the past two years. In federal filings, Emily’s List identified Butler as living in Maryland from September 2021 through August 2023.

The best way for Butler to nip this problem in the bud would be to take a quick trip to California before Tuesday, where she can re-register to vote in person and signal her intention to remain in the state long-term. This physical presence in the state would surely satisfy the Constitution’s inhabitance requirement. Even if Butler were not an “inhabitant” of the Golden State when Newsom announced her appointment, she would regain her inhabitancy status with this homecoming. If she doesn’t have time for an in-person trip, she could start planning a move back to her California home, or begin the application process for a California driver’s license. Such actions indicating her intent to return to the state and remain there could plausibly suffice to reestablish residence.

But there’s a weirder question lurking beneath the surface here: Does Butler even need to be an inhabitant of California to represent the state in the Senate? You might think the obvious answer is yes. It isn’t.

The confusion here derives from both the original Constitution and the 17^th Amendment, which was ratified in 1913. That amendment revoked state legislatures’ authority to pick senators, instead empowering voters to elect senators directly. It also carried over a rule from the original Constitution governing Senate vacancies: The “executive” (governor) of a state may appoint someone to fill them. Everyone agrees that the first two requirements—age and citizenship—apply to these appointees. But what about the inhabitance rule? Remember, that applies at the time of a senator’s election. But appointees aren’t elected! So does the rule apply at all?

Law professor Stephen Sachs, a fair-minded conservative, argues yes. Sachs points out that the Constitution said senators were “elected” when chosen by a state legislature, indicating that the term has a capacious meaning that stretches beyond the “general citizenry” casting their ballots. In this context, he asserts, the word “elected” must mean the “whole process of official choice,” whether made by a governor, a legislature, or the people at large. If Sachs is correct, then Butler will be “elected” when Newsom formally appoints her by signing a certificate of appointment. And if Newsom already signed that certificate, Sachs claims, he should summon her to California and re-sign it once she has established residency. Only then would the qualification problem disappear.

Sachs’ strongest argument for this theory is that otherwise, a governor could appoint an inhabitant of any state to fill a Senate vacancy. “The Constitution might have had good reason for wanting Senate candidates to be state residents,” he writes—chiefly, a desire to ensure that “the interests of each state’s residents receive equal representation.” That does sound like a good idea. But if it’s so important for every senator, elected or appointed, to inhabit the state they represent, why doesn’t the Constitution actually say that? Why, instead, does the inhabitance requirement apply only to “elected” senators by its plain text?

There are surely plausible arguments in the other direction. Maybe the Framers of the original Constitution and the 17^th Amendment didn’t want to limit the pool of potential appointees by adding yet another qualification for Senate service. (They certainly took care to keep the list short.) Maybe they entrusted governors to appoint a senator who would represent the state’s interests and didn’t think it was worth enshrining that principle in the Constitution. (These appointments are, after all, only temporary.) Maybe they felt a state’s political process would be sufficient to deal with a governor who chose an out-of-state appointee, entrusting the people to vote him or her out of office. (This deference to decisions made by a state’s elected officials and voters would promote the same federalist principles that Sachs highlights.) Or maybe the Framers of these constitutional provisions just never contemplated this question at all.

And would that be so surprising? The Framers didn’t seriously contemplate a vast range of issues that dominate political debates today, or never reached a consensus. None of them knew what a “direct tax” was, yet they restricted it anyway, and the Supreme Court may soon preemptively kill a wealth tax on the grounds that it is “direct.” The Framers don’t seem to have thought much about state courts’ power to regulate federal elections, or about rudimentary aspects of habeas corpus. On disputes about the meaning of “equal protection” and “liberty”—affirmative action, women’s equality, reproductive rights, marriage—they provided no explicit guidance. The 14^th Amendment ostensibly bars insurrectionists from holding public office, but we still have no idea how that ban should operate in practice.

The Constitution does not have all the answers. And when we pretend it does, we empower unelected judges to make up the answers and attribute them to the infinite wisdom of long-dead Framers. It’s fortunate, then, that the Constitution does empower the Senate—and not the courts—to judge the qualifications of “its own members.” When a would-be senator’s qualifications are contested, the Senate must decide, by a vote, whether to accept them. Even with one vacancy, Democrats hold a small majority in the chamber, and they can overrule any GOP objections to Butler and seat her on Tuesday. By doing so, they will effectively resolve this constitutional quandary in Butler’s favor. The text of the Constitution may not offer a definitive answer here. But the people and their representatives still can.