Safatul Islam

AP Government

March 1, 2010           

US Term Limits Inc. v Thornton (1995) 

The last decade of the 20^th century was a period of intense political fervor. Bill Clinton had secured the White House after years of Republican rule under the conservative ideologies of Ronald Reagan. There was a definite power struggle in the federal government as Republicans attempted desperate ways to exert their influence on the legislature after losing the executive office. One momentous action they took was drafting the “Contract with America,” which detailed the goals of the GOP if they were to gain a majority in the House of Representatives. Naturally, this document had much to do with gaining public appeal. A particular desire highlighted in this “contract” was the limitations of terms on legislators. Republicans hoped that such a measure would lead to a greater turnover in Congress, and therefore could potentially benefit the party. Furthermore, this concept was easily pitched to the public because, the Republicans argued, a limit of serving time encourages an influx of new thinking in the government and, in turn, better representation ^[1]. 

It was under this pretext that a number of state governments enacted legislation that would impede the legislator election process in some way. The state of Arkansas issued one of the most deliberate measures. In their state election in 1992, the citizens approved an amendment to their constitution, Amendment 73, that would ban any federal Representative who had served 3 terms or Senator who had served 2 terms from appearing in the voter ballot for reelection. They would, however, still be considered as candidates if voters chose to write-in the incumbents’ names on the ballot. This provision hardly removed the fact that there was now a severe barrier to incumbency ^[2].

Immediately following the passage of this amendment, political activist Bobbie Hill sued over the constitutionality of this action. The Arkansas Supreme Court ruled in her favor, as it agreed that the new regulation did add a qualification for becoming a federal legislator to the pre-established requirements set by the Constitution, specifically those outlined in Article I Section ii and iii. Still, the US Term Limits organization, a special interest group dedicated to implementing term limits because they feel it encourages better government responsiveness and quality, appealed the decision and it ultimately landed in the Supreme Court ^[3].

The Supreme Court at this time was dominated by the presence of William Rehnquist and a variety of justices appointed under Republican presidents. Hence, the general court was fairly conservative. However, that did not mean the court was completely uniform. Although Justices Rehnquist, Scalia, and Thomas were all strong conservatives, other Justices, such as O’Connor and Kennedy were more moderate in their ideology. Thus, a case such as US Term Limits Inc v Thornton, which created much more constitutional controversy than ethical issues, was expected to encounter heated debate ^[4].

Indeed it did. This case firmly brought back the concept of federalism and states rights as opposed to national rights. The ramifications of the Arkansas amendment meant that states could supplement Constitutional requirements with further qualifications. Was this constitutional? The state argued that it was on several fronts.  First, the supporting lawyers tried to say that this was not even a qualification, because the senators and representatives could still acquire the office if they are elected. The only difference is that they cannot appear on the state ballot. General Bryant, in favor of the amendment, also mentioned Storer v Brown as a precedent for this case. In this decision, the Court upheld a law by the State of California temporarily banning a person from running for office if they had become a member of the independent party (ie switched parties). However, as Justice Souter pointed out, there is a difference in that the current case involved a lifetime ban from the ballot ^[5].

The argument for Amendment 73 not being an additional qualification was weak. This led to the much more important issue regarding the extent to which states could add to the Constitution. Interestingly, the Justices chose to use Powell v McCormack as the precedent. This case did not involve States’ right, but rather Congressional ability in modifying the qualifications necessary to become a legislator. In Article 1 of the Constitution, there lie a few statements that mention that the Congress can overturn State laws regarding the “time, places, and manner” under which congressmen are elected and that “each house [in Congress] shall be the judge of the… qualifications of its own members” ^[6]. The Supreme Court ultimately decided that this latter clause, in Section V, did not mean that Congress could change the requirements, but only judge for qualifications according to those although set by the Constitution. Otherwise, the court feared, there would be an undue power invested in Congress ^[7].

In his majority opinion in favor of Thornton (the final vote was 5-4, with Justice Kennedy concurring), Justice Stevens reasoned that by virtue of Congress not having the right to change qualifications, the question of whether States can do this arises from the Tenth Amendment, which gives States the powers that were not already “delegated.” ^[8] This essentially became the question before the court – did the states have the reserved right to modify qualifications for legislators? Such a question did bring in other precedents, particularly those that also dealt with federalism such as McCulloch v Maryland, in which the Court ruled in favor of the national government superseding the states. Specifically, Chief Justice Marshall set the precedent that Congress’ “delegated” included those that were implied, while States reserved rights had to be more explicit ^[9]. Similarly, in this case, the Supreme Court decided that the States had no power to modify the qualifications because this was not in their “reserved powers.” The States were never given a right to change qualifications, so it made no sense to give them that right now ^[10].

Furthermore, Amendment 73 was unconstitutional on two other fronts. First, it did not fall under the “time, places, and manner” regulations that the Constitution had allowed the States to decide because the amendment was a strong deterrent to a legislator being re-elected and hence was more a “qualification” check. This legislation also opens the door for the possibility that states would enact various and differing qualifications and, in turn, creates a disjointed union. Additionally, by impeding incumbency, the voices of the people, who are always the most important intent of the Constitution, may not be fairly heard. Interestingly, the dissenting opinion, supplied by Justice Clarence Thomas, mentioned that the ruling was “ironic” in the sense that the Court wanted power to the people to choose whom they wanted as representatives, but it actually overturned what they wanted as a law ^[11]. 

This case had strong ramifications in the sense that the rights of States were again undermined. It now confirmed the precedent that although States had some rights, any that strongly inferred with the national government was not among such privileges. Furthermore, the decision asserted the completeness of the qualifications for legislators because, barring a constitutional amendment, neither Congress nor States could change that. This definitely hurt the case for a term limit, and perhaps hinders other issues on how to encourage a high turnover rate in the legislature, because qualifications can no longer be directly changed by either Congress or the States. The case also reaffirmed the notion that the people had the ultimate say in who they would choose as representatives. This is very important because the original intent of the Constitution was to allow this to happen. Hence there was never a property or wealth requirement attached to the Constitution (although it was debated). One key note that should be addressed in the dissenting opinion was Justice Thomas' statement that if something is not directly in the Constitution, such as who has the power to impose qualifications, it should be deferred to the States or the people. This is a very literal interpretation and will undoubtedly be addressed in future cases, just like it has in past ones. However, the precedent, as reaffirmed by Stevens, has been to rule in favor of the federal government's implied powers. 

Personally, I believe the Court was absolutely correct in their decision. It would make little sense to allow states to enact their own qualifications because then each state would have different regulations. This would create a disjunct "patchwork" as Stevens said, and would greatly change the demographics of our legislature. Moreover, I believe the constitution was intended to protect the national rights above all else, and thus states should not have a say in matters that profoundly affect the nation; such as impeding the election of federal representatives who represent not only their own district, but the entire country. This is why, I believe, the Constitution only allowed for changes in the time, place, and manner in which the elections are being held, but affirmed Congress' right to change that if necessary. The concept of term limits is also intriguing; however, if they were to be imposed, it would create a void in our national politics because so many of the key officials in the US have been people who have served long tenures in Congress. Still, perhaps the idea of limiting incumbency can be pursued another way because it does have some merit (although it is a bit extreme because it assumes all incumbents are irresponsive - this is not the case, eg Ted Kennedy). I was particularly disappointed with the dissenting opinion in this case because even though people voted on this legislation, it does not mean that it is correct. Although, the majority opinion should always be valued, in certain situations, such as slavery, it was not a good thing. Hence the court should (and it did) act with more prudence than just the belief of “lets follow the crowd.”