Cite as: 31 Tulsa L. J. 585 Tulsa Law Journal Spring 1996 Note *585

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31 TLSLJ 585


(Cite as: 31 Tulsa L.J. 585)

Tulsa Law Journal

Spring 1996


Jason M. Hans

Copyright © 1996 University of Tulsa; Jason M. Hans

I. Introduction

A recent opinion poll conducted in 1995 found that 73 percent of Americans supported term limits for members of Congress. [FN1] An earlier poll conducted in 1991 showed that 75 percent of Americans favored term limits. [FN2] Further, the 1991 poll showed this broad support for term limits was not confined to a particular demographic group. [FN3] Such nationwide approval of term limits has been the impetus for the proposal and passage of term limit measures. [FN4] Although there are proposals at the federal level, [FN5] the United States Congress has not yet been able to pass a proposal for a constitutional amendment to limit its members' terms. [FN6]

Because Congress has not passed an amendment to the Constitution to limit its terms, the states have attempted to effectuate term limits on their congressional delegations through state constitutional amendments [FN7] or state statutes. [FN8] These state-imposed term limits have *586 prompted a substantial amount of scholarly commentary. Some scholars have argued that state-imposed term limits are unconstitutional, [FN9] while others have argued that they are constitutionally permissible. [FN10] Similarly, many student written works have examined the same issue and argued that state- imposed term limits are either constitutional [FN11] or unconstitutional. [FN12]
State-imposed term limits have generally taken two forms. [FN13] One form, "pure term limits," flatly declares that an individual may not serve more than a specified number of terms as a United States Representative or Senator from any one state. [FN14] The other form, "ballot-access term limits," prohibits an individual from appearing on the ballot after serving a specified number of terms in Congress as a Representative or Senator, but does not prohibit the candidate from serving if elected as a write-in candidate. [FN15]
State attempts to limit congressional terms were voided, and the scholarly discussion became "academic," when the Supreme Court *587 granted certiorari [FN16] and settled the question in U.S. Term Limits, Inc. v. Thornton [FN17] (hereinafter " U.S. Term Limits"). This note examines the Court's opinion on the issue of whether state-imposed term limits are constitutionally permissible. The Court, in reaching its decision, properly relied on its precedents and the Framers of the Constitution historical materials on the exclusive nature of the qualifications [FN18] for United States Representatives and Senators. The Court held that state-imposition of pure term limits violated the Constitution. Further, the U.S. Term Limits Court did not make a distinction between the two types of term limits, which was correct under Supreme Court precedents. Therefore, ballot access term limits are also unconstitutional. Thus, this note concludes that the judgment of the Supreme Court was well-founded.
Part II of this note describes the factual and legal background of the U.S. Term Limits case. [FN19] Part III briefly summarizes the majority and dissenting opinions in the case. [FN20] Part IV describes the author's analysis of the constitutionality of state-imposed term limits in this case. [FN21] Finally, Part V examines the implications of the Supreme Court's opinion. [FN22]

*588 II. U.S. Term Limits v. Thornton
A. Facts

On November 3, 1993, the voters of Arkansas approved Amendment 73, [FN23] an initiative petition to amend the Arkansas Constitution. [FN24] The amendment placed term limits on state executives [FN25] and legislators, [FN26] as well as the state's congressional delegation. [FN27] On November 13, 1993, Bobbie Hill and the League of Women Voters of Arkansas filed a complaint in an Arkansas state court seeking, among other things, [FN28] declaratory relief that Section 3 of Amendment 73, the section that imposed term limits on Arkansas' congressional delegation, violated the United States Constitution. [FN29] A congressman from Arkansas, Ray Thornton, was one of the named defendants. [FN30] Both Arkansas State Attorney General Winston Bryant and the political organization U.S. Term Limits, Inc. intervened. [FN31] Congressman Thornton, although a defendant, joined Hill in moving for summary judgment that Amendment 73 was unconstitutional. [FN32] The trial court granted summary judgment because it found that Section 3 violated the United States Constitution. [FN33]

*589 U.S. Term Limits appealed the trial court's ruling to the Arkansas Supreme Court. [FN34] In U.S. Term Limits, Inc. v. Hill, [FN35] the Arkansas Supreme Court discussed the historical background relating to term limits and the Constitution, [FN36] but found "the history to be helpful but inconclusive regarding the issue at hand." [FN37] However, the court determined that in light of the intentions of the Framers of the Constitution [FN38] and the Supreme Court's ruling in Powell v. McCormack, [FN39] Section 3 of Amendment 73 was not permitted under the Constitution. [FN40]

B. The Issues Before the United States Supreme Court

After the decision in the Arkansas Supreme Court, both U.S. Term Limits, Inc. and Arkansas Attorney General Bryant petitioned for writs of certiorari from the United States Supreme Court. [FN41] The Court granted both Petitioners' requests for hearings [FN42] and consolidated the cases. [FN43]
*590 The issues presented to the Supreme Court were "whether the Constitution forbids States from adding to or altering the qualifications specifically enumerated in the Constitution" [FN44] and "if the Constitution does so forbid, whether the fact that Amendment 73 is formulated as a ballot access restriction rather than as an outright disqualification is of constitutional significance." [FN45]

III. The U.S. Term Limits Decision

In U.S. Term Limits, the Supreme Court affirmed the judgment of the Arkansas Supreme Court by a five to four decision. [FN46] In so doing, the Court determined that state-imposed ballot access term limits on members of Congress violated the Constitution. [FN47] Thus, section 3 of Arkansas Amendment 73 could not constitutionally impose any limits on Arkansas' congressional delegation.
In reaching its decision, the Court, speaking through Justice Stevens, took several analytical steps. First, the Court addressed the question of whether the Constitution sets forth the exclusive qualifications for membership in Congress. [FN48] The petitioners argued that the Court's decision in Powell v. McCormack [FN49] could be narrowly interpreted as a decision on the powers of Congress, not the powers of States. [FN50] On this point, the Court did not distinguish or overturn its prior decision in Powell. Rather, the Court followed Powell's holding that the historical materials of the Framers showed their intent that the Qualifications Clauses were to be exclusive. [FN51]
Second, because the petitioners made a Tenth Amendment argument, the Court decided to determine whether the several states, in this case Arkansas, had the power to add to or alter the qualifications *591 given in the Constitution. [FN52] On this point the Court first determined that the states were without the power because it was not a reserved power under the Tenth Amendment. [FN53] In the majority's view the several States do not possess powers which did not exist prior to the framing of the Constitution. [FN54] The Court then gave an alternative basis for finding an absence of state power: the Constitution precluded state power on the matter. [FN55] Thus, the Court in U.S. Term Limits held that the State of Arkansas did not have the power to add to or alter the qualifications of its congressional delegation. [FN56]
Finally, the Court had to wrestle with the issue of whether or not section 3 of Amendment 73 [FN57] was in fact a "qualification." [FN58] The petitioners argued that section 3 was not a qualification since it did not prohibit a congressional candidate from being elected; it only prohibited a candidate who had already served three terms from appearing on the ballot. [FN59] The Court did not accept this argument and found that such a distinction was not of constitutional significance. [FN60]
Justice Thomas filed a dissenting opinion in which he was joined by Chief Justice Rehnquist and Justices O'Connor and Scalia. [FN61] In his analysis, Justice Thomas went directly to the issue of whether the several States have the power to prescribe qualifications for their congressional delegations. [FN62] First, Justice Thomas determined, in dissent, that the States retain any power not delegated to the Federal Government in the Constitution. [FN63] His interpretation was that the Qualifications Clauses [FN64] did not limit the powers of the several States to add *592 qualifications [FN65] and that the decision of Powell v. McCormack [FN66] was limited to the powers of Congress. [FN67] Then, Justice Thomas stated his understanding that there was nothing in the text of the Constitution which precluded state power. [FN68] In the final analysis, Justice Thomas and the Justices who joined him would have reversed the judgment of the Arkansas Supreme Court. [FN69]

IV. Analysis

In deciding U.S. Term Limits, the Court's ultimate judgment was supported by many authorities. The reaffirmation by the U.S. Term Limits majority of the holding in Powell v. McCormack, [FN70] that the qualifications for congressional members were exclusively set forth in the Constitution and could not be added to or altered in any manner other that by amendment, [FN71] seems to be correct. Additionally, the Court's holding that section 3 of Amendment 73 [FN72] constitutes a "qualification" under the Constitution was supported.
This note's analysis first illustrates that pure term limits imposed by states violate the Constitution because the qualifications set forth in the Constitution are exclusive. The analysis further demonstrates that state- imposed ballot access term limits violate the Constitution because they constitute qualifications.

A. The Exclusivity of the Constitutional Qualifications

As one scholar has correctly recognized, "[w]hether or not the Qualifications Clauses are exclusive is not . . . a question that can be answered by parsing the language of the Constitution." [FN73] The Court in U.S. Term Limits brought together a number of authorities to support its conclusion that the qualifications for membership in Congress *593 given by the Constitution are exclusive. [FN74] An examination of historical authorities and prior Supreme Court decisions reveals that the Court's holding was correct.

1. Historical Support

Among the authorities which support the exclusivity of the Qualifications Clauses are the discussions of qualifications for members of the federal legislature in the Federalist Papers. [FN75] A passage written by Alexander Hamilton sheds light on how the Framers believed the Constitution contained the exclusive qualifications for membership in the Congress. [FN76] The Framers' fear that property qualifications could be set by the legislature motivated the creation of the Qualifications Clauses, [FN77] and Hamilton's use of the phrase "defined and fixed in the Constitution and . . . unalterable. . . ." [FN78] Another paper written by James Madison likewise demonstrates the Framers' intent that the Qualifications Clauses be exclusive so that religious or national origin requirements would not be placed upon members of Congress. [FN79]
Charles Warren's account of the Constitutional Convention also clearly shows the intent of the Framers that the qualifications for members of Congress were exclusively set forth in the Constitution. [FN80] During debate over whether Congress should have the power under Article I, section 5 of the Constitution [FN81] to set additional qualifications, James Madison emphatically opposed giving Congress this *594 power. [FN82] Subsequently, the Convention defeated proposals to give Congress the power to set either general qualifications or only property qualifications. [FN83] These actions support the conclusion, shared by Warren, that the Convention made age, citizenship and residency the exclusive qualifications for membership in Congress. [FN84]
Another historical writer who agreed that the Qualifications Clauses were exclusive was Justice Joseph Story. [FN85] He suggested that, if the qualifications enumerated in the Constitution were not exclusive, the States could dissolve the Congress by making all persons ineligible under their own qualifications. [FN86] Also, Justice Story recognized that if adding qualifications were permitted, then either the States or Congress could vary those specified in the Constitution. [FN87] Thus, States would be able to circumvent the age, citizenship and residency requirements of the Qualifications Clauses. [FN88] Justice Story's observations, therefore, further support the exclusive nature of qualifications for membership in the Congress.

2. Supreme Court Precedents

Although the historical materials of the Framers and Justice Story's commentaries, standing alone, support the proposition that the Qualifications Clauses are exclusive, the decision of the Supreme Court in Powell v. McCormack [FN89] seems to have authoritatively decided the issue. The Court in Powell found that the qualifications for membership in the United States Congress were exclusive under the Constitution. [FN90] In that case, Adam Clayton Powell was elected to *595 serve in the United States House of Representatives from a congressional district in New York. [FN91] The House, however, did not allow Powell to take his seat or oath because there were allegations of impropriety on his part. [FN92] Subsequently, the House voted to exclude Powell from his seat. [FN93] Powell then filed an action for declaratory relief that his exclusion from the House was unconstitutional. [FN94] The district court dismissed the case, [FN95] and the court of appeals affirmed, ruling that the case was not "justiciable." [FN96]
The Supreme Court, however, reversed the court of appeals' judgment. The Powell Court examined whether the case was "justiciable" or if it merely presented a "political question." [FN97] In doing so, the Court determined that a decision of whether the case involved a political question must turn on whether the House had the power to add to the qualifications of its members beyond those enumerated in the Constitution. [FN98] If the House did have such power, there would be a "textually demonstrable constitutional commitment of the issue" [FN99] to the House. [FN100] The decision rested on an evaluation of the various historical materials to determine the intentions of the Framers. [FN101]
In Powell, the Court considered authorities other than the Federalist Papers and Justice Story's commentaries. [FN102] First, English legislative and court precedents prior to the Constitutional Convention were discussed. [FN103] The Court found the English precedent of the John Wilkes case to be the most notable. [FN104] In that case, Wilkes was not seated in the Parliament despite having been elected to it several times. [FN105] The resolution of the dispute came in 1782 when Wilkes was finally seated. [FN106] In the view of the Powell court, the Wilkes case *596 demonstrated the English interpretation of the fixed nature of qualifications for legislators. [FN107]
Secondly, the Court in Powell examined the experience of an early Congress with regard to the qualifications of its members. [FN108] The Court cited the challenge to William McCreery's eligibility for membership in Congress in 1807. [FN109] In that year, the state of Maryland tried to impose additional residency qualifications on its Congressional delegation. [FN110] The House of Representatives, however, decided that McCreery should be seated because Maryland's imposition of qualifications was contrary to the Constitution. [FN111] Such action signaled the understanding that the United States House of Representatives, in 1807, believed the Qualifications Clauses were exclusive. Due to its proximity to the Constitution's ratification, the Powell Court found the McCreery incident to be of significant precedential value. [FN112] In conclusion, Chief Justice Warren found that the House only had the power to expel members for not meeting "the qualifications expressly set forth in the Constitution." [FN113] Thus, Powell decided what was apparent from the intentions of the Framers.
The Powell decision was reaffirmed in the Supreme Court decision of Nixon v. United States. [FN114] In that case, the Court was again faced with another determination of whether the case presented a political question or was justiciable. [FN115] Chief Justice Rehnquist, speaking for the majority, found Powell to be controlling on the issue. [FN116] In explaining his reliance on Powell the Chief Justice noted *597 that, in Powell "[w]e held that, in light of the three requirements specified in the Constitution, the word 'qualifications' . . . was of a precise, limited nature." [FN117] Thus, the Court agreed with Powell's holding that the Qualifications Clauses were exclusive.

3. Pure Term Limits Violate Exclusivity

Based on the foregoing, it seems clear that the qualifications required to be a member of Congress were intended to be exclusively those enumerated in the Qualifications Clauses. The historical materials of the Framers [FN118] and the Supreme Court's precedents confirm that the Qualifications Clauses contain the exclusive requirements for membership in Congress. [FN119] As a result, any attempt to create additional qualifications directly violates this exclusivity. When a state directs that an individual cannot be a member of its congressional delegation after serving a specified number of terms, the state imposes additional qualifications which are not among the exclusive qualifications enumerated in the Constitution. Therefore, state term limits are unconstitutional.

B. The Definition of "Qualification"

There have been some attempts to define exactly what constitutes a "qualification" under the Qualifications Clauses of the Constitution. [FN120] If a limit on Congressional service does not constitute a "qualification," the exclusivity of the constitutional provisions would not be violated. Thus, the definition of "qualification" becomes very important in determining whether a term limit measure infringes on this exclusivity.

1. Formal Barrier to Service

One possible standard for judging which measures add to or alter the constitutional qualifications would be to define a qualification as any formal barrier for service to Congress. [FN121] Under this definition, *598 only regulations which legally prohibit an individual elected to Congress from serving would violate the Constitution. Thus, a ballot access term limit would not be unconstitutional if it allows write-in candidates to serve. [FN122]
Support of this view may be inferred from the Supreme Court's decision in Storer v. Brown. [FN123] The case involved California regulations which required an independent candidate to file nomination papers signed by at least five percent of the voters in the preceding general election, and those signing must not have voted in any primary. [FN124] An independent candidate who sought to have his name placed on the ballot challenged California's election regulations. [FN125] The Court addressed the appellants' claim at length under the First and Fourteenth Amendments. [FN126] However, the Court summarily dismissed a Qualifications Clause challenge. [FN127] Proponents of state-imposed term limits argue that the Storer case demonstrates the proposition that some qualifications may be added if they are not formal bars to membership in Congress.
The "formal barrier" definition, however, disregards the Framers' intent that the qualifications were to be exclusively set forth in the Constitution. [FN128] In preventing a property qualification from appearing in the text of the Constitution, the Constitutional Convention surely did not intend to allow states to put a ballot restriction on candidates who did not possess a certain amount of property. [FN129] Clearly, ballot-access term limits are more onerous to a candidate than a requirement that a candidate obtain a number of voter signatures for nomination papers. Because "the touchstone of Qualifications *599 Clause[s] jurisprudence has been how an election law affects a candidate, not why the candidate is affected," [FN130] the 'formal barrier' definition is erroneous.

2. Analogies to the Constitutional Qualifications

Another possible standard which could be used to determine whether a limitation is a "qualification" is whether the regulation contains "unavoidable analogies to the three constitutionally enumerated qualifications." [FN131] Under this formulation, any regulation that does not vary the age, citizenship, and residency requirements of the Qualifications Clauses are permissible.
However, this definition belittles the intentions of the Framers that the qualifications in the Constitution were to be exclusive, not some minimal requirements. [FN132] The historical materials discussed earlier show that the use of certain qualifications, such as religious requirements, were the impetus for the exclusivity of the constitutional qualifications. Therefore, although term limits (pure or ballot-access) could be constitutional under the unavoidable analogies definition, they would be contrary to the intent of the Framers which underlies the Qualifications Clauses would not support the limitations. Therefore, the unavoidable analogies definition is inconsistent with the Constitution.

3. Effective Disqualification

A third possible means to determine whether the qualification is impermissible is whether the regulation constitutes an "effective disqualification" for an individual to serve in Congress. [FN133] Under this standard, a law is an unconstitutional qualification if it is "the legal equivalent of an absolute prohibition from holding office." [FN134] This definition, although susceptible to becoming "a judicially unmanageable standard," [FN135] closely follows the intent of the Framers. First, evasion of the enumerated qualifications would violate the spirit of the *600 Constitution. Surely the Framers did not debate and draft constitutional provisions which could be disregarded. [FN136] The Supreme Court has recognized that the Constitution does not contain clauses which are "empty formalism[s]." [FN137] Secondly, there is a distinction between qualifications for membership in Congress and state laws regulating election procedures by requiring candidates to show community support. [FN138] An "effective disqualification" does not even allow an individual to demonstrate that support. Thus, the "effective disqualification" standard is the most appropriate means to judge whether a law constitutes a qualification.
Under the "effective disqualification" standard, Section 3 of Amendment 73 is an impermissible qualification. Section 3 does not allow anyone who has served the specified number of terms to appear on the ballot. [FN139] The possibility of winning as a write-in candidate is so remote [FN140] that Section 3 becomes "the legal equivalent" [FN141] of a qualification. Because it is a qualification under this standard, Section 3 is an unconstitutional violation of the exclusive Qualifications Clauses. [FN142]

V. Implications

The U.S. Term Limits decision creates some interesting questions on the current state of federal election laws [FN143] and the Supreme Court's view of federalism. [FN144] These possible new issues are explored below.

A. Candidacy as a Constitutional Right

One implication of the U.S. Term Limits decision could be its effect on the rights of candidates. The extent to which an individual has a right to be a candidate for public office is a question that has been

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