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The Oxford Companion to the Supreme Court of the United States, 2nd Edition edited by Hall, Kermit L (23rd June 2005)

U, U.S. Term Limits, Inc. v. Thornton,

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 04 July 2020

U.S. Term Limits, Inc. v. Thornton,

514 U.S. 779 (1995), argued 29 Nov. 1994, decided 22 May 1995 by vote of 5 to 4; Stevens for the Court, Kennedy concurring, Thomas, Rehnquist, O’Connor, and Scalia in dissent. By the late 1980s and early 1990s the perceived advantages held by incumbents in Congress and in state legislatures stimulated a nationwide movement to place restrictions on the number of terms that elected officials could serve. Between 1990 and 1993, for example, twenty-three states placed such restrictions on members of their congressional delegations and an even larger number imposed limitations on their state legislators. Moreover, in 1994 Republican candidates for Congress pledged in their “Contract with America” to bring a proposed term limit amendment to a vote. The entire term limits debate evoked images of citizen lawmakers versus corrupt professional politicians.

At the general election in 1992, the voters of Arkansas adopted Amendment 73. This ballot initiative applied term limits to three groups: elected officials in the executive branch, members of the state legislature, and the Arkansas congressional delegation. In the case of the third group, the new amendment restricted persons serving in the Congress to three terms and persons serving in the United States Senate to two terms. The amendment provided that persons who exceeded these limits would not be certified to be on the ballot, although this arrangement did not restrict a candidate from running a write-in campaign. The sponsors of the amendment argued that the states alone had authority to determine whom they wished to send to Congress and that the question of election qualifications was the business of the states and not of the federal government.

The proponents of Amendment 73 insisted that the regulation was not a qualification to hold office but simply a ballot access measure of the sort authorized by the federal Constitution’s “elections clause.” The Arkansas measure simply continued a practice reaching back to the colonial era in which the states were fully empowered to set nominating rules and procedural limits. Moreover, the framers of the federal Constitution had intended as much, since they wanted, above all else, a Congress of (p. 1043) citizen legislators who would not want to stay in office indefinitely. While supporters of the term limit concept differed over whether Congress or the states alone could pass these measures, they all agreed that better government required higher turnover in office.

The critics of Amendment 73 insisted that the states could regulate the integrity of the electoral process only within a single electoral cycle, and that the states could not supersede the provisions of Article I, section 2, clause 3 (House of Representatives) and Article I, section 3, clause 3 (Senate), which laid out the qualifications for office. They complained that the Arkansas amendment had established a qualification for serving in Congress by limiting the terms of service that a candidate could offer to the public. The replacement of incumbent congressmen was the function of the electoral process; provisions dealing with membership in Congress were beyond the reach of the states.

Justice John Paul *Stevens’s majority opinion was direct. According to Stevens, the framers of the Constitution had intended for there to be a uniform national legislature that represented the people of the United States. Such a requirement could not be met through Amendment 73, since the states were prohibited from establishing their own qualifications for congressional service. The assertion that the Arkansas amendment was a ballot access measure was simply wrong, both as a matter of history and good constitutional sense. Amendment 73 was nothing more than an indirect attempt to circumvent the clear requirements of the federal Constitution and to trivialize the basic democratic principles upon which that document rested. Even Congress, Stevens observed, could not summarily change the terms of Article I, section 4, which allowed the states to establish the times, places, and manner of holding elections for senators and representatives but gave Congress the authority at any time to alter such regulations. Stevens noted that such an arrangement would put Congress in the position of setting its own qualifications, something that the framers had rejected. As Justice Stevens reminded his colleagues, the *Tenth Amendment could reserve only that which existed before. While the Articles of Confederation had contained a term limits provision, the framers of the Constitution in Philadelphia had specifically rejected a proposal to require “rotation” in office. Although the possibility of the states setting their own term limits was not discussed at the constitutional convention, the absence of such a discussion meant, according to the majority, that it was implicitly rejected. “Permitting individual states to formulate diverse qualification for their representatives,” Stevens concluded, “would result in a patchwork of state qualifications, undermining the uniformity and the national character that the framers envisioned and sought to insure” (p. 850). The framers of the Constitution, in short, never intended that the states would be allowed to exclude from congressional service whole classes of people, such as those who had already served three terms in the House or two terms in the Senate. Any change in these provisions could be accomplished only through the federal amending process.

Justice Clarence *Thomas’s forceful dissent argued in support of the constitutional and political wisdom of Amendment 73. Thomas noted that more than 60 percent of the voters in Arkansas had approved the ballot initiative and that it had passed in every congressional district. By failing to accept the Arkansas measure, the Court had, according to Thomas, misrepresented the nature of the federal union. That union, he declared, was based on the consent of the people of each individual state, not the consent of the undifferentiated people of the nation as a whole. Thomas’s opinion served as a dramatic reminder of how the conservative members of the Court wanted to rewrite the script of modern constitutional law by resurrecting the idea that the states were the authentic organs of democratic government. Since the Constitution had not specifically enumerated the powers of the federal government to set qualifications, then the power to do so was specifically reserved under the Tenth Amendment to the states.

Justice Anthony M. *Kennedy’s concurring opinion was particularly important, since it represented the views of the critical swing vote in the case. Kennedy reminded the dissenters, with whom he often sided, that citizens of the United States had a dual identity, one state and one federal, which formed the major “discovery” of the American constitutional system. The power to add qualifications for membership in Congress could not be seen as a power “reserved” to the states by the Tenth Amendment because it was never part of the states’ original powers.

The Court’s decision was among the most important of the modern era dealing with the structure of the federal government. The decision effectively wiped off the books congressional term limit provisions in twenty-three states, although it left intact measures that limited state legislators and executive branch officials. Most important, the Court affirmed the right of the people as a whole and not the states individually to serve as the building blocks of American representative government.

Kermit L. Hall(p. 1044)