A Case for Term Limits

November 27, 1994|By GEORGE F. WILL

Washington. -- Tuesday morning Arkansas will have 45 minutes in the Supreme Court to defend the constitutionality of state-imposed term limits of the sort it and 21 other states have applied to their U.S. senators and representatives. Forty-five minutes should suffice. Herewith a defense in fewer than 720 words:

Mr. Chief Justice, may it please the court.

Although election returns are not germane to your deliberations, some opponents of term limits assert that recent electoral turbulence renders term limits unnecessary as a means of dislodging entrenched incumbents. Actually, about 90 percent of congressional incumbents on the ballot Nov. 8 won. Granted, various scandals (House bank, House post office, Rostenkowski, etc.) and generalized misgovernance have recently produced rates of turnover unusual by modern (although not by pre-1950) standards. However, Americans, by a three-to-one margin, wish to use term limits to promote good government, rather than rely on recurring disgust to produce periodic churnings of the political class.

Besides, dislodging entrenched incumbents is not the only, or even the primary, reason for term limits. The primary reason is to remove careerism as a motive for entering electoral politics, and for unsatisfactory behavior while in office. The question before the court is: Can states constitutionally achieve this by imposing term limits on their own congressional delegations?

Those who deny that states have this right say the Constitution stipulates three qualifications for membership in Congress (age, citizenship and inhabitancy in the state from which a person is elected), and that these are the only permissible qualifications. This second assertion is demonstrably false. As this court noted in Storer v. Brown (1974), ''States have evolved comprehensive, and in many respects complex, election codes regulating in most substantial ways, with respect to both federal and state elections . . . [many matters, including] the selection and qualification of candidates.''

A number of states require candidates for the House of Representatives to live in the district they wish to represent, and states require various residency periods. Are these states acting unconstitutionally by enforcing an additional qualification for office?

Various states require candidates to present various kinds of petitions to secure access to the ballot. Most states require candidates to declare affiliations with parties. Some states prohibit candidates who have lost in primaries from running in general elections. Other states prohibit holders of certain offices from being candidates for the U.S. Senate or House.

If the court cuts down state-imposed term limits as an impermissible additional qualification, the scythe of the court's logic will mow down laws in most, perhaps in all states. But surely a reasonable reading of the plain text of the Constitution confirms what the Constitution's structure and spirit strongly imply: in our federalism of ''dual sovereignty,'' states have broad scope for experimentation and diversity in regulating their political processes.

As Jefferson wrote, the Constitution imposes ''some'' qualifications for membership in the House and Senate ''but it does not declare, itself, that the member shall not be a lunatic, a pauper, a convict of treason, of murder, of felony, or other infamous crime, or a non-resident of his district; nor does it

prohibit to the state the power of declaring these or any other disqualifications which its particular circumstances call for; and these may be different in different states. Of course, then, by the 10th Amendment, the power is reserved to the states.''

Critics of state-imposed term limits argue that the Constitution does not explicitly grant states permission to add qualifications. That is true but immaterial, given the plain text of the 10th Amendment: ''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.''

Jefferson was surely correct that the Constitution's three qualifications are minimums, defining a floor above which states, acting as laboratories of liberty, are free to rise with additional qualifications reasonably related to legitimate state goals. Such goals include competitive political processes shaped to enhance the likelihood of electing deliberative representatives.

Jefferson's understanding accords with historic practices, including those of the Founders' era.

If the court now rules against Arkansas, it must say that neither Madison nor Jefferson understood the Constitution. So a sense of the ridiculous -- as well as an understanding of the text, structure and spirit of the Constitution as a charter of a federal system of limited, delegated and enumerated powers -- should cause the court to affirm the right of states to impose term limits.

George F. Will is a syndicated columnist.

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