Term Limits: Divining the Wishes of the Founders

February 20, 1994|By THEO LIPPMAN Jr.

A federal district court judge in Seattle ruled this month that Washington state may not enact a law that would, in effect, limit the terms members of the U.S. House of Representatives and Senate could serve.

Voters in the state approved an initiative in November that would forbid the state from listing on the ballot a candidate for representative who had served for six of the previous 12 years. The same initiative forbid the listing of a Senate candidate who had served in that body 12 of the previous 18 years.

The initiative also would forbid such incumbents or ex-incumbents from filing a formal declaration of candidacy. But they would be eligible to be elected as write-in candidates.

That was cold comfort to House Speaker Thomas S. Foley, D-Wash., who, with others, sued to have the initiative declared unconstitutional. They knew that never in Washington's history had a write-in candidate won election to Congress.

Judge William L. Dwyer based his decision to throw out the so-called term limits law primarily on the Constitution, and primarily on his belief that Article I, Sections 2 and 3, are the exclusive qualifications for holding congressional office. Those sections list only these qualifications:

"No person shall be a representative who shall not have attained the age of 25 years, and has been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen."

"No person shall be a senator who shall not have attained the age of 30 years, and been nine years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state for which he shall be chosen."

Judge Dwyer said his reading of the debates of the Constitutional Convention, of the "Federalist Papers" advocating the Constitution's adoption and of other contemporary political literature made it unquestionable that the Founding Fathers intended that states not impose any other requirements for election to Congress.

He notes that the delegates to the Constitutional Convention voted unanimously in 1787 to reject explicit term limits.

He quotes Alexander Hamilton: "The qualifications of the persons who may choose or be chosen . . . are defined and fixed in the Constitution, and are unalterable by the legislature." He quotes James Madison: "The qualifications . . . have been properly considered and regulated by the convention."

Both of those quotations were also used by the Supreme Court in 1969, when it ruled that Congress could not change members' qualifications.

Proponents of term limit laws in Washington (and the 14 other states that have voted for them) say that has nothing to do with states adding qualifications. All that Article I does, they argue, is forbid states from adopting different age, citizenship and residency requirements. States can't alter in any way those three qualifications, but it can add others, this theory goes.

Term-limit supporters can quote the scriptures of the Founding Fathers, too. They cite Madison and other members of the first Congress, which produced the Bill of Rights. That document was among other things intended to assure the states that their rights -- particularly political rights -- would not be secondary to the federal government's.

The pro-term-limits argument stresses the last two of the amendments that make up the Bill of Rights, the Ninth and Tenth. Those say that the "enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." And that the "powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

The Washington term limits case looks very much like one of those where the Supreme Court is going to have to determine how to rule by determining what a small group of men thought more than 200 years ago. And what they wanted us, 200 years later, to do about their intentions.

Here is my guess (I'm not a judge; I can admit that's what it is). I'd guess the Founding Fathers believed so strongly in rotation in office and citizen government that they would be horrified to see how permanent and full-time service in Congress has become.

For example, before he was elected to the House in 1964, Speaker Foley was an aide to the late Sen. Henry Jackson of Washington. Mr. Jackson served 12 years in the House of Representatives and 30 years in the Senate -- 42 years a member of Congress! -- and would be serving in his 53rd year today, no doubt, if he hadn't died. (At 81 he'd still be younger than the Senate's senior member and younger than at least two members of the House.)

At the time of the elections to the first Congress, such a development was unthinkable. Several states had term-limit laws for their legislative bodies. The Articles of Confederation had had term limits for the national Congress.

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