U.S. Term Limits, Inc. v. Thornton (1995)

Nov 12

Why Term Limits Became Popular

As confidence and trust in elected officials declines, the search for ways to check, restrain, and replace them increases. In the aftermath of the Vietnam War, Watergate, and the stagflation of the 1970s, the United States experienced a crisis of political leadership. The blame for the failed policies of the Vietnam War era was traced to multiple factors including entrenched incumbency, the repeated election of the same incumbent political elites. Reelection rates from 1970-2000 averaged 93.4% for the U.S. House of Representatives and 85.3% for the U.S. Senate.

Term limits became increasingly popular as reformers searched for ways to replace the existing political elite and prevent a new elite from becoming entrenched. Term limits are a simple solution to entrenched incumbency. If the problem is politicians who stay in office for too many terms, then the solution is setting legal limits to the number of terms they can serve. The Twenty-second Amendment (1951) created a two-term term limit for the president. It was a reaction to FDR being elected to four consecutive terms. Although a popular and successful president, many believed, following the tradition of the Anti-Federalists, that frequent turnover or rotation in office is healthy. Frequent rotation supports a citizen legislature that is more responsive to the common people than a professional legislature enabled by entrenched incumbency and controlled by powerful special interests. FDR may have brought new ideas and energy to the Oval Office when first elected, but by the time he died in office his approach to government and politics was stale and uncreative.

Background and Legal Issues in U.S. Term Limits, Inc. v. Thornton

By the early 1990s, 23 states passed term limit laws that included their federal representatives. Arkansas was one such state. Its term limit provisions were added to the state constitution in 1992 as Amendment 73. In addition to placing term limits on state government officials, the amendment restricted representatives to the U.S. House of Representative to three terms and U.S. Senators to two terms. Representatives who reached these limits could run for reelection, but only as write-in candidates.

Arkansas Congressman Ray Thornton and other co-plaintiffs challenged the constitutionality of the law. They argued that Amendment 73 violated Article I, Sections 2 and 3 of the U.S. Constitution, the Qualifications Clauses. These clauses could only be changed through the amendment process to the U.S. Constitution. States do not have the power under the Constitution to unilaterally change the qualifications requirements for membership to the U.S. Congress. When the case was appealed to the Arkansas State Supreme Court, Thornton prevailed. U.S. Term Limits, Inc., a national non-profit organization devoted to promoting term limits, appealed the case to the U.S. Supreme Court.

The Court’s Ruling in U.S. Term Limits, Inc. v. Thornton

The U.S. Supreme Court ruled 5-4 for Thornton. Justice Stevens wrote for the majority and Justice Thomas for the dissenting Justices. There were three central parts to Justice Stevens’s opinion: 1) The qualifications for members of Congress are fixed by Article I, Sections 2 and 3, clauses 2 and 3 respectively of the Constitution; 2) the fixed nature of Congressional qualifications was decided in Powell v. McCormack; 3) Arkansas’ ballot-access loophole has no effect on the fixed nature of qualifications for members of Congress.

Fixed Qualifications

According to Justice Stevens, the Qualifications Clauses of Article I are fixed and can only be changed by constitutional amendment. The Framers of the Constitution insisted that the people choose their representatives and that the national legislature be uniform. If the qualifications for U.S. Representatives or U.S. Senators are not uniform, then the Framers’ conception of the national legislature is undermined. The qualifications are not only fixed, but they are also exclusive, meaning that they can only be changed by national constitutional amendment to ensure uniform qualifications. At the Constitutional Convention a proposal to empower Congress to add a property requirement was rejected because, as James Madison stated, it would “vest ‘an improper & dangerous power in the Legislature’ by which the Legislature ‘can by degrees subvert the Constitution.’” Justice Stevens suggested that by adding qualifications to those in the Constitution, states could make candidates ineligible who would be eligible based on Article I qualifications alone. The state qualifications would, then, circumvent the Constitution.

Powell v. McCormack

While not identical to U.S. Term Limits, Inc. v. Thornton, Powell v. McCormack (1969) decided a similar question, Can Congress create qualifications in addition to those in the Constitution? In a 7-1 decision, the Court ruled that Congress cannot add qualifications that would exclude an otherwise eligible candidate—a candidate who meets the requirements of the Article I Qualifications Clauses—from occupying a seat in Congress. The Court’s decision in Powell relied on the original intent of the Constitution’s Framers. Chief Justice Warren’s opinion for the Court emphasized Alexander Hamilton’s statement that “the people should choose whom they please to govern them,” a foundational principle of republican government. The opinion draws on statements made by Madison, as well as Hamilton, that support the notion that the qualifications for eligibility to serve in Congress are set by the Constitution and may not be changed. Powell considered whether Congress had the power to add to the qualifications listed in Article I. U.S. Term Limits, Inc. v. Thornton considers whether the states have such power; the Court ruled that they do not.

The Ballot-access Loophole

U.S. Term Limits, Inc. argued that Arkansas’ Amendment 73 did not change the eligibility of candidates for Congress; it merely excluded long-serving incumbents’ names from appearing on the ballot if they served the maximum number of terms allowed by Amendment 73. Such candidates were not prohibited from running for office or serving in Congress if victorious. They could prevail as write-in candidates. Article I, Section 4 of the national Constitution grants states the power to regulate the “Times, Places and Manner of Holding Elections for Senators and Representatives.” Under this provision, states routinely deny ballot access to candidates who lose primary elections or who fail to receive a requisite number of ballot petition signatures. The Court acknowledged this discretion in Storer v. Brown (1974), a case dealing with the California Elections Code, but in U.S. Term Limits, Inc. v. Thornton it differentiated the two legal issues. The California case does not establish additional requirements for office; the Arkansas case does. Justice Stevens argued that “Amendment 73 is an indirect attempt to accomplish what the Constitution prohibits Arkansas from accomplishing directly.” State election codes, such as those upheld in Storer, do not have the same effect as term limits. They do not change eligibility requirements for office but create rules and processes for managing elections. Term limits on members of Congress were discussed and rejected at the Constitutional Convention. The Framers’ intent was to fix the eligibility requirements for Congressional elections and make them uniform. Changes to those requirements can, thus, only be made by the Article V amendment process.

Justice Thomas’s Dissent

Justice Thomas argued in his dissenting opinion that the Constitution is silent on the question of the states’ power to add eligibility requirements to those listed in Article I. He stated that “where the Constitution is silent, it raises no bar to action by the states or the people.” Sovereignty rests in the consent of the people of each state not the “undifferentiated people” as a national majority. The people of Arkansas in their sovereign capacity decided to add eligibility requirements for their Congressional representatives. Justice Thomas addressed the undemocratic nature of the majority’s decision:

It is ironic that the Court bases today’s decision on the right of the people to “choose whom they please to govern them.”…Under our Constitution, there is only one State whose people have the right to “choose whom they please” to represent Arkansas in Congress. The Court holds, however, that neither the elected legislature of that State nor the people themselves (acting by ballot initiative) may prescribe any qualifications for those representatives. The majority therefore defends the right of the people of Arkansas to “choose whom they please to govern them” by invalidating a provision that won nearly 60% of the votes cast in a direct election and that carried every congressional district in the State.

U.S. Term Limits, Inc. v. Thornton Legacy and Analysis

It is interesting that Justices Stevens and Thomas both ground their decisions on the Framers’ original intent but come to opposite conclusions about the constitutionality of Arkansas’ term limit amendment. Their theoretical divide is created by competing conceptions of American democracy through which they interpret the Framers’ writings.

Justice Stevens insisted that “the Framers envisioned a uniform national system,” while Justice Thomas emphasized that the Tenth Amendment reserves most power to the states and the people. Justice Stevens argues that “the right to choose representatives belongs not to the States, but to the people.” Justice Thomas responds that reserving power to the states means that each state in the American federal system can choose to conduct politics as it sees fit unless expressly prohibited from such action by the national Constitution or its state constitution. The national Constitution does not prohibit states from adding eligibility requirements to those listed in Article I, therefore, states are free to make what additions they deem appropriate. Federalism results in diversity not uniformity. Justice Thomas suggested that states can lower the voting age below 18, the federal standard created by the Twenty-sixth Amendment. The amendment does not require a uniform voting age, only that states do not raise it above 18.

Justice Stevens, by contrast, insisted that eligibility requirements for membership in Congress must be uniform because national “representatives owe primary allegiance not to the people of a State, but to the people of the Nation.” The Tenth Amendment does not empower states to add eligibility requirements because reserved powers are limited to those that states held prior to the creation of the Constitution and not denied to the states by it. Under the Articles of Confederation, states did not have the power to determine the eligibility requirements for membership in the national legislature. Moreover, McCulloch v. Maryland (1819) rejects Justice Thomas’s claim that the Constitution’s silence does not prohibit the exercise of state power. States are not given nor are they denied the expressed power in the Constitution to tax federal institutions such as banks, yet the Court ruled in McCulloch that it was unconstitutional for Maryland to tax the federal bank in Baltimore.

The differences between Justices Stevens’s and Thomas’s arguments are rooted in competing interpretations of Hamilton’s Federalist 15, the topic of which is union. Stevens takes Hamilton to mean that the Constitution created a national government with representatives who are obligated to the people of the nation. Thomas emphasizes that the Constitution created a union of states and that “the people” referred to in the Constitution are the people as constituted in particular state communities that maintain significant sovereignty in the federal system. Both Justices recognize the federal nature of the constitutional system, but they tip the balance of power regarding eligibility requirements in opposite directions, based on their overarching views of the Union.