Will the Supreme Court let states impose limits on the representatives and senators they send to Washington, D.C.?
Thanks to events in North Dakota, there’s a good chance this question is about to asked again.
And get a different answer.
The first time was thirty years ago. The case: U.S. Term Limits v. Thornton.
In May 1995, the U.S. Supreme Court held, in a 5 – 4 decision, that states cannot impose restrictions like term limits on their congressional delegations.
But: “Nothing in the Constitution deprives the people of each State of the power to prescribe eligibility requirements for the candidates who seek to represent them in Congress,” observed Justice Clarence Thomas in his dissent. “And where the Constitution is silent, it raises no bar to action by the States or the people.”
Now 61 percent of North Dakota voters have passed a ballot measure to impose an age limit on their congressmen. The 1995 Supreme Court would have ruled it unconstitutional. The only justice serving on the high court then who is still there is Thomas.
Everybody thinks that North Dakota’s outlawing of ancient candidates will be challenged in court. In a June 17 podcast for U.S. Term Limits, its president, Philip Blumel, says that USTL would welcome such a challenge.
“Surely, U.S. Term Limits versus Thornton would be the basis” for the challenge and would thus “provide an opportunity for the U.S. Supreme Court to revisit the issue.”
Moreover, a case brought in federal court won’t necessarily take years to decide, because “sometimes the [Supreme Court] expedites election-related cases.”
Fingers crossed, everybody.
This is Common Sense. I’m Paul Jacob.
NOTE: Paul Jacob is a former president of U.S. Term Limits and continues to serve on its board of directors. Paul is currently the president of Liberty Initiative Fund, which made significant contributions to North Dakota’s age limits initiative.
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8 replies on “A Second Life for Limits”
Journalists will confuse support by Justices for the right of the states and of their people to impose age limits on their representatives with agreement that the states and their people ought to exercise that right. Thence the journalists will claim that any Justice who supports that right would be a hypocrite if he or she remains on the Court past the age at which the voters of North Dakota have attempted to set as a limit.
While I very much support term limits, I am uncomfortable with age limits, especially if they are not occasionally revisited in the face of advancing medical technology. The most important aspect of term limits is their effect on incentives. Age limits, on the other hand, seem basically to impose statistical discrimination without any mechanism for over-ride. The onset of senility can come as early as the fourties, but some people maintain considerable mental functionality beyond their eighties. An unusual person ought not to be thwarted for being unusual.
Medical advances in the last century have prevented most premature deaths from disease. I would raise the minimum age by fifteen years, to prevent someone from finishing school and immediately running for federal office, as Joe Biden did. They should have to spend some time in the working world first. At the very least, they should first serve in local or state government. Where upper age limits are concerned, I would rather let voters decide at the ballot box. If they really want to dump their aging reps, they’ll vote that way in their own districts and states. North Dakotans’ choices won’t be immediately affected by this ballot measure, but will they change their minds in ten or fifteen years once they are faced with barring an incumbent from running? All that seniority…gone.
“where the Constitution is silent, it raises no bar to action by the States or the people”
But the Constitution is not silent on the qualifications for US Representative/Senator. It exhaustively lists those qualifications, among which “has served no more than x terms” does not appear.
I have nothing against the idea of term limits (although I don’t expect they’d have much impact).
But supporters of term limits should do the work of getting 2/3 of both houses of Congress to propose, and 3/4 of state legislatures to ratify, the constitutional amendment that would be required to impose such limits instead of playing the “Constitution doesn’t really mean what it says” game in the courts.
In using the word “exhaustive”, you beg the question. The Constitution does not itself declare that only those conditions shall be imposed by any authority.
There is only one reason for supporting term limits: to get rid of the OTHER GUY’S representative. If 61% of voters want to get rid of their OWN guy there’s no need for term limit; just vote him out with 61%. Term limits are the way to reach over and “vote out” somebody else’s representative. It’s the proverbial two-edged sword. You like YOUR rep? Tough, he’s gone.
No. You are waling on a man of straw.
Amongst other things, term limits are a commitment mechanism to get us all out of a sub-optimal Cournot-Nash equilibrium, in which a disastrous premium is placed upon seniority.
So if the 61% of North Dakota voters really believed this was a good idea, they could vote that way in every election. Problem solved.
In U.S. Term Limits versus Thornton, the Court divided into three camps.
One camp of four Justices said that located in Congress the right to choose its own members, constrained only by the explicit bounds of the Constitution; and those Justices said that the right to elect members to the Senate and to the House of Representatives could not exist prior to the creation of those institutions, and therefore the right to decide how they would be elected was not protected under the Ninth and Tenth Amendment.
Justice Kennedy accepted that it was protected, but that the right of the people inhered at the scale of the whole of America.
And the remaining four Justices held that the Constitution could restrict only explicitly the rules imposed upon the constituent states and upon the voters in that state.
The problems with the positions of the four Justices other than Kennedy who voted to discard term-limits are [1] they make the legislative chambers non-representative except just when explicitly required to be so and [2] they fail to recognize that the very existence of Congress could have no legitimacy except from underlying prior rights of the people and of the constituent states which same rights would have expression in imposing term limits.
The problem with the position of Justice Kennedy is that no procedure for federal referenda exists, so that only the constituent states and federal super-state can effect changes at that level. And the Constitution clearly distinguishes states from people. (I have considerable respect for Justice Kennedy, but sometimes he just got it wrong.)