Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: MONDAY, November 28, 1994                   TAG: 9411280084
SECTION: NATIONAL/INTERNATIONAL                    PAGE: A-1   EDITION: METRO 
SOURCE: DAVID G. SAVAGE LOS ANGELES TIMES
DATELINE: WASHINGTON                                LENGTH: Medium

HIGH COURT TO TACKLE AN OLD ISSUE

Now, the term-limits movement needs only five more votes.

On Tuesday, the nine life-tenured justices of the U.S. Supreme Court will hear arguments on whether the Constitution permits states to fix the maximum terms of lawmakers in Washington. They will consider an Arkansas term-limits law that was struck down in March by the state's Supreme Court.

The idea of fixed terms for legislators is by no means novel. In fact, it was the norm in the early 1780s.

Yet, the notion faces a major hurdle when it is taken up by the Supreme Court this week: Historical accounts of the constitutional convention of 1787 suggest that the delegates considered term limits for members of Congress - and rejected the idea.

No one can predict with certainty how much weight the high court will attach to the historical record. If the high court relies on history and strikes down the new state laws that fix terms, the movement will be dealt a severe, although not necessarily fatal, blow.

Its leaders say they would then press for a constitutional amendment, a process that requires two-thirds votes of approval in the House and Senate and ratification by three-fourths of the state legislatures.

But if at least five of the nine Supreme Court justices vote to uphold term limits, the clock will begin ticking for U.S. senators and representatives in 22 states.

Clearly, political momentum appears to favor the term-limits movement. It already has established itself as one of the more powerful political waves to sweep across the nation in the early 1990s.

Unless derailed by the high court, its proponents say, term limits will dramatically change the prevailing culture on Capitol Hill by replacing ``career politicians'' with ``citizen legislators.''

This is, of course, not a new idea of democracy, but a very old one.

The delegates who came to the constitutional convention in Philadelphia were quite familiar with what were then known as ``rotation'' rules. Ten of the 13 new states limited the terms of their state representatives, and the Articles of Confederation - the predecessor to the Constitution - included a specific rotation rule for the Congress that governed the nation in the early 1780s. ``No person shall be capable of being a delegate for more than three years in any term of six years,'' it said.

But on June 12, 1787, the delegates rejected what was called the Virginia plan for structuring the new federal government. It included a provision that would make members of Congress ``incapable of re-election'' after a certain period of service. Term limits were never again considered by the convention.

To make sure no new qualifications for Congress would be imposed, Alexander Hamilton added that the minimal requirements - such as minimum age and residency in the state - ``are defined and fixed in the Constitution and are unalterable by the legislature.''

The Supreme Court recited this history in the 1969 case of Adam Clayton Powell vs. John McCormack. In 1966, the House had refused to seat Powell, who, though re-elected by his Harlem constituents, was accused of diverting House funds for his personal use.

Nonetheless, the high court ordered Powell to be seated. Because the Constitution sets open-ended requirements for federal representatives, Congress itself was ``without power'' to set new or higher standards for elected representatives, the court said.

In their briefs to the high court for the Arkansas case, lawyers for the Clinton administration and for Rep. Ray Thornton, D-Ark., cite the constitutional history and the Powell ruling as reasons for striking down state term-limits laws as violations of the Constitution.

Lawyers for U.S. Term Limits say that the Constitution and the Powell ruling say Congress cannot add extra qualifications for representatives, but neither prevents the states from doing so.

Second, they argue that term-limits laws do not, in reality, legally limit terms, because a congressional veteran could still be elected as a write-in candidate.

After hearing a 90-minute argument, the justices will vote privately in the Arkansas case. They are likely to issue a written ruling by June.