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How the Supreme Court Might View Term Limits

Upcoming case could raise many interpretations of the Constitution

THE controversy over term limits will soon be resolved when the United States Supreme Court becomes the final arbiter of whether Americans have the right to legislate limits on how long elected officials may stay in office.

The court has reserved all of Nov. 29 for hearing oral arguments in US Term Limits Inc. v. Thornton. The case involves an Arkansas law that is similar to those now in 15 other states: It limits US senators to two terms and members of the House of Representatives to three (the number of terms differs in the various states).

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The Arkansas Supreme Court overturned the law last year, holding that state lawmakers may not go beyond the criteria of residency, age, and citizenship as specified in Article I of the US Constitution.

The issues underlying term limits are complex. For classical republican writers like Niccolo Machiavelli, Englishman James Harrington, and the framers of the American Constitution, true liberty demands a frequent rotation in and out of office. Politicians in office for too long begin to see their offices as theirs by right, and they become corrupt. But such rotation should not be undertaken at the expense of prudence and experience, because a magistrate needs time to gain the knowledge and seasoning to make a difference.

In US Term Limits Inc. v. Thornton, the court could examine the question from a number of constitutional perspectives.

If we take, for example, a ``literalist'' view of the Constitution - that the document means only what its words explicitly say - the framers included no limitation on terms. If the provision is not there, then the law is not constitutional.

If we take an ``originalist'' position - where constitutional validity is based on the original intentions of the framers - we will be led to the same conclusion. An important principle of the American republic at its founding was that Americans could create a government that would ensure that its citizens act virtuously and differently from their European forebears (the Old World vs. New World syndrome).

At the 1787 Constitutional Convention, the framers rejected rotation in office. While they wanted a numerous electorate (not based on property qualifications), they specifically declined to include limited terms of office.

A ``structuralist'' interpretation of the Constitution - one that holds that the document created a representative democracy based on the federal system - leads us to a complication.

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On the one hand, if we follow the people's will of the 16 states that have terms limits, then the court would have to say that their wishes ought to be fulfilled. On the other hand, under the federal system, no state may add provisions, requirements, or criteria to the Constitution. That job belongs to Congress, acting with the states, or to a constitutional convention.

We might take an expansive view of the Constitution and contend that it is a living, changing document. We might argue that American society in 1994 is markedly dissimilar to what it was 200 years ago. Issues involving taxes, insurance, health care, social welfare, and politics require vast amounts of new knowledge and expertise. It takes a long time for any representative or senator to understand the problems facing Americans, much less to begin to solve them.

Moreover, from a purely practical political perspective, like it or not, the seniority system - unknown to the framers - has become the foundation of American politics. Despite repeated efforts to reform it, the system remains firmly in place, and if only some states require term limits on the federal level, these states would automatically be eliminated from congressional leadership roles.

This is an improper way to undo the seniority system. It could cause massive disruptions in the way that Congress does business, and it might tend to focus the attention of Congress on local, rather than national, issues.

When the court confronts these issues this term, it will likely uphold the decision of the Arkansas Supreme Court and overturn the law on the basis of the federal principle. This decision will stimulate an even greater lesson in constitutionalism: No doubt US Terms Limits Inc., a national lobbying group, will begin the drive for a constitutional amendment, a situation that never fails to draw the people's attention to public affairs.

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